Hardie v North Sydney City Council

[2006] NSWLEC 45

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:    Hardie v North Sydney City Council [2006]  NSWLEC 45

PARTIES:
APPLICANT
Katrina Hardie

RESPONDENT
North Sydney City Council

CASE NUMBER:       10950  of        2005

CATCH WORDS:      Development Application

LEGISLATION CITED:
North Sydney Local Environmental Plan 2001
North Sydney Development Control Plan

CORAM:        Hussey C

DATES OF HEARING:          29-30/11/2005

DECISION DATE:    10/02/2006

LEGAL REPRESENTATIVES

APPLICANT
Mr M Staunton, solicitor
SOLICITORS
Staunton Beattie
RESPONDENT
Ms E Duenow, solicitor
SOLICITORS
Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

10 February 2006

10950 of 2005  Katrina Hardie  v 

North Sydney Council

JUDGMENT

Background

1. This appeal was lodged against council's refusal of a development application to demolish an existing carport and pergola structure and replace it with a new double garage, located at the rear of the site at 50 Burlington Street, Crows Nest.  In response to this, the applicant undertook a number of amendments, so that the outstanding issues for the appeal can be summarised as:

·the impact on the landscaped area of the site, in terms of an existing deficiency of landscaped open space area, pursuant to the prevailing development standards;

·the bulk, character and reasonableness of the proposed to cover car parking spaces;

·heritage impacts.

1. The parties agreed to Ms D Laidlaw being the Court appointed expert for planning and she prepared a detailed report, dated November 2005 (Exhibit 2).  Following consideration of this report and discussions at the on-site hearing, further minor amendments were undertaken by the applicant, resulting in the parties now agreeing to consent orders.

The site

1. The site is described as Lot 1 in DP 924544 and is known as 50 Burlington Street, Crows Nest.  The site is rectangular in shape and has a western boundary of 6.705 m to the rear lane.

The proposal 

1. This proposal involves:

·the demolition of the existing single carport structure and pergola structure located at the rear of the site;

·the construction of a new double garage with a pitched, terracotta tiled roof and including:

·new bi-fold doors on the southern elevation of the garage;

·double panel lift garage door on the northern elevation of the garage facing laneway;

·extension of the vehicular driveway crossing from single to double;

·associated landscaping.

Planning controls
North Sydney Local Environmental Plan 2001 (LEP)

1. Under this LEP, the site is located within the Residential A2 zone and the proposal for the new double garage is ancillary to a residential dwelling and permissible with consent. The site is situated within the Holtermann Estate B conservation area and is listed as a ‘contributory item’ (Sch 4).

1. The LEP contains a number of general aims and objectives, which are relevant together with the provisions of:

   ·              Clause 18 relating to building height plane;

   ·              Clause 20 relating to landscape area;

   ·              Clause 44 relating to heritage conservation objectives;

   ·              Clause 49 relating conservation areas.

2. Clause 14 of the LEP provides: Consent must not be granted to the carrying out of any development unless the consent authority is satisfied that the development:

   (a)          is in accordance with and

   (b) promotes the specific aims of this plan and the objectives of the zone.

North Sydney Development Control Plan (DCP)

1. This DCP contains detailed design controls for parking provisions, width of entrances onto laneways, streetscape/building form provisions and landscaping requirements.

The evidence

1. The Court-appointed expert, Ms Laidlaw has provided a detailed assessment of the proposal, within the current planning framework, resulting in her opinion that conditional consent should be granted.  Considering this report, I also note that no objections were received to the proposal.

1. One of the threshold issues in this case concerns the allowance of SEPP 1 objections to the following development standards contained within the LEP.  Firstly, cl 20 provides for a minimum landscape area requirement of 50% for a site of the area of the subject site (control operates on a sliding scale, under which a higher percentage of landscape area is required for larger sites).  In this case the landscape area is currently estimated at 31.5% and the proposal reduces it to 23%.

1. The SEPP 1 objection is fundamentally based on the retention of the existing dwelling footprint and maintenance of the front garden landscape setting of the dwelling, as well as retention of all existing hard paved areas, so there is no change to the existing landscape area due to the proposal.  From her assessment of this objection, Ms Laidlaw acknowledges the non-compliance with the numerical standards but says that it would be unreasonable to require strict adherence to this standard because of the existing non-complying situation and in the context of the non-compliance of the majority of neighbouring properties.

1. Furthermore, as the council has recently approved a similar, non-complying development application nearby at No. 40, Ms Laidlaw says that the underlying objectives will be achieved, on this site and therefore the SEPP 1 objection should be allowed.

1. The next issue concerns the bulk and character of the proposed two-car garage.  The council's initial submission was that:

   provision of 2 covered car parking spaces in the manner proposed is excessive for the site given the size of the land, the size of the dwelling on the site, the extent of street cross-over proposed to be constructed and the extent to which car parking will dominate a laneway frontage of the site and the proposed garage structure is too bulky when viewed from the laneway, neighbouring properties and the dwelling on the subject site.

2. Council’s particulars note:

   The proposed garage structure will occupy the entire laneway frontage of the site leaving no opportunity for landscaping either in front or to the side of the structure.  The small area of private open space which will remain between the garage and the dwelling house will be unable to accommodate significant landscaping and at the same time provide for the private space of the occupants of the dwelling. 
   Council also notes that the proposal does not comply with the Building Height Plane in Clause 18 of the LEP.

3. Following her assessment of the proposal and SEPP 1 objection to the Building Height Plane development standard, Ms Laidlaw accepts that it would be reasonable to allow a variation to the standard, which provides for a narrower garage that includes increased setback on the eastern side to incorporate landscaping.  Furthermore she does not have any concern with respect to the criteria relating to views, privacy, sunlight and ventilation and any overshadowing impact on the adjoining No. 48 is minimal and arguably not material.

1. The remaining issue concerns heritage impacts, whereby council submits that “the proposed development will have an unacceptable impact on the integrity of the conservation area”.

1. According to Ms Laidlaw’s initial assessment:

   The heritage significance and integrity of the conservation area, however, is largely confined to the principal street frontage in this instance.  Although the laneway environment may well have had significance originally, from a ‘ heritage’ as opposed to simply a ‘ streetscape’ perspective it is difficult to avoid the conclusion that this has been all but lost by a succession of inappropriate developments.  As noted, these (or similar replacement structures) are likely to provide the longer-term context of the site and any development above it.

   The proposed garage is unsympathetic to the extent that it extends across the full width of the site, with no landscape opportunity remaining.  While I believe that a single garage with a skillion roof carport tucked under the eave would be preferable structure, and one that would be more sympathetic to the form and scale of built form associated with the group of cottages to which the subject property belongs, I would concede, under all the circumstances, that it would be difficult to insist upon this.

   As indicated above, I believe that, as a minimum, the area occupied by the side passageway be deleted, and the fence set back from the laneway boundary slightly, so as to provide at least some landscape contribution to the lane, adjacent to the western boundary.

Conclusions

1. Having considered the evidence and undertaken a view, I acknowledge that the applicant has undertaken further amendments to the proposal to incorporate setbacks and landscaping suggested by Ms Laidlaw.  Accordingly, this has resulted in the council’s satisfaction with the proposal, in the subject context, so as to agree to conditional consent orders.

2. From the evidence presented to the Court, it seems to me that this revised proposal satisfies the provisions of cl 14 of the LEP, so as to merit consent.  In this regard, I rely on the detailed assessment and support, by the Court-appointed expert, for the SEPP 1 objections to the development standard for the landscape area requirement and building height plane provisions, in deciding that strict adherence to the controls is unreasonable and unnecessary in this case. 

3. Accordingly, I am also satisfied the proposal is consistent with cl 49 provisions.  With regard to the heritage considerations, I rely on Ms Laidlaw’s overall assessment that the relevant matters are satisfied.  As the demolition is of the existing garage, it is apparent that this will not result in any incremental loss of heritage significance or affect the character of this rear lane area.

4. I also note Ms Laidlaw subsequently suggested the following condition be imposed:

   “The stepping stones shown to the south eastern side of the garage are to be bedded in soil with the foundation base maintained at the minimum to support that stone, in order to maintain the permeability of this part of the site.

5. Insofar as the applicant objects and the council does not insist on its imposition, nevertheless as I have relied on the assessment and opinions of Ms Laidlaw to allow the SEPP 1 objections and grant the consent orders, for consistency I consider it reasonable to also include the aforementioned condition denoted (A4.1). 

6. In the ultimate, I rely on Ms Laidlaw's evidence to grant the consent orders.

Court orders

1. Therefore the orders of the Court by consent are:

   1.The appeal is upheld.

   2.The development application No.  37/2005 lodged on 8 February 2005 for the construction of a new double garage with pitched, terracotta tiled roof at Lot 1 in DP 924544 and identified as 50 Burlington Street, Crows Nest, be approved subject to the attached conditions marked "Annexure A".

   3.The exhibits be returned, except for Ms Laidlaw's Report of November 2005 and Items 1-7 in Exhibit 1.

1. The Court notes the parties agreement to bear their own costs.

___________________

R Hussey
Commissioner of the Court

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