Jensen RJC v North Sydney Council

[2004] NSWLEC 133

Land and Environment Court

of New South Wales

CITATION:	Jensen RJC v North Sydney Council [2004] NSWLEC 133
PARTIES:	APPLICANT Rodney J C Jensen RESPONDENT North Sydney Council
FILE NUMBER(S):	11401 of 2003
CORAM:	Murrell C
KEY ISSUES:	Development Application :- Impact on public domain and adjoining properties - heritage/conservartion area - building height and plane - overshadowing and privacy
LEGISLATION CITED:	Environmental Planning and Assessment Act State Environmental Planning Policy No. 1
CASES CITED:	Winten Property Group Ltd v North Sydney Council (2001) NSWLEC 46
DATES OF HEARING:	02/03/2004
EX TEMPORE JUDGMENT DATE :	03/02/2004
LEGAL REPRESENTATIVES:	APPLICANT Mrs M-L Taylor SOLICITORS Taylor Kelso RESPONDENT Mr N Ogden SOLICITORS Mallesons Stephen Jaques

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

11401 of 2003 Murrell C 2 March 2004 Rodney J C Jensen
Applicant
v North Sydney Council
Respondent Judgment

1. This is an appeal under s 97 of the Environmental Planning and Assessment Act (the Act) against North Sydney Council’s refusal of a development application for the property known as No. 7 French Street, McMahons Point.

2. The matter that has come before me today was also the subject of a s 82A review under the Act and council reconfirmed its previous decision to refuse the development application.

3. The issues in these proceedings identified by the respondent council include:


height, bulk and scale;
building height plane;
impact on the amenity of the adjoining properties;
overlooking and overshadowing;
impact when viewed from public domain.


4 . The proposed development is in breach of the building height plane contained in cl 18 of the North Sydney LEP. The building height is also breached in terms of cl 17 of the North Sydney LEP. The council also contend that the proposal is inconsistent with the objective of desired character of the area and in that regard council cites cll in 14, 16 and 17 of the LEP as well as the DCP provisions.

5 . In terms of bulk and scale the council is of the opinion that the development should not be approved as it will result in unnecessary bulk within the context of the site and adjacent development in the character surrounding area.

6 . The issue of solar access and overshadowing is raised in terms of the impact on No. 9 French Street. The issue of outlook from No. 9 is also pressed as well as the issue of privacy on No. 9.

7 . The heritage conservation was not pressed by the council as an issue and indeed it has been assessed by a number of heritage consultants.

8 . On behalf of the applicant Mr Stanley gave expert evidence in the proceedings. He is an architect and heritage consultant and for the respondent Mr Harvey Sanders, a consultant town planner, gave evidence. The Court this morning has heard evidence from the experts as well as a neighbour of No. 5, Mr Gallagher.

9 . The council has a planning regime which is its Local Environmental Plan of 2001 and relevant clauses in that plan and objectives of design have been pointed out to me and I have had regard to the relevant provisions of that LEP as well as the relevant parts of the North Sydney Development Control Plan of 2002 . The document also contains a character statement of the McMahons Point area.

10 . The Court has also had regard to the submission received in respect of the advertising from five submissions that were received from nearby property owners including the SRA.

11 . The owners of No. 5 French Street are concerned about the proposal in terms of its impact on the amenity of that property, in particular the overlooking and overshadowing issues. A consultant also prepared a report or a letter on behalf of those owners and said that he considered the proposed development was not in keeping with the area in terms of the fact that the proposed dwelling together with the adjoining dwelling in the street are not only in the heritage conservation area but also heritage items in themselves.

12 . The relevant provisions of the plan I have had regard to as well as the expert reports. The relevant provisions that the Court must have regard to include the heritage conservation provisions and the provisions contained in the LEP whereby the development must be assessed as to its impact on the heritage and conservation area and whether the proposal is satisfactory from a heritage conservation perspective. Mr Sanders was of the opinion that the proposed development represents a material impact on No. 9 French Street in that the overshadowing experienced at the equinoxes is unacceptable.

13 . The provisions of the relevant development control plan require that the overshadowing impact should not increase overshadowing on properties during the winter solstice 21 June and that the 3 hours should be maintained. The adjoining development at No. 9 is not impacted in terms of the winter sunshine/solar access but the proposal, however, does impact in terms of the equinoxes. The orientation of the subject property is such that during the equinoxes it does not receive sun until soon after 1 pm in the afternoon and from the additional shadow diagram the subject proposal starts to impact from 2 pm in terms of the additional overshadowing and also at 3 pm.

14 . There has been discussion about the interpretation of the control and I also have the benefit of the evidence today, in terms of the council’s assessment report where overshadowing was not considered to be an issue and I agree the proposed development will not materially affect the property at No. 9 in terms overshadowing.

15 . The amenity of the proposal in terms of outlook was also raised as an issue, it is not maintained that there is a view per se obtained from the property but there is an outlook to trees and open sky. In my assessment I am satisfied that the proposed development is set back from the side boundary to create a breezeway and ventilation and light to the subject property and I am satisfied that No. 9 is not materially impact in terms of amenity impact to the side boundary.

16 . I need to go further in terms of my assessment and it would probably have been more appropriate to firstly comment on the two State Environmental Planning Policy No. 1 objections that are required to vary the various standards as these are threshold questions. I must look at the objectives of those standards.

17 . To deal first with cl 17 of the LEP which is concerning building height. The specific objectives of the clause are: to limit the height of buildings in residential zones to a one storey street façade where this is characteristic of the building height; promote pitched roofs and promote retention of an appropriate sharing of existing views; maintain solar access to new and existing dwellings, public reserves, streets and promote solar access to new buildings; and maintain privacy for residents of existing dwellings and for privacy for residents of new buildings. In this regard as I said the SEPP 1 questions or variations are threshold questions and I follow the process provided by his Honour Lloyd J in the matter of Winten Property Group Ltd v North Sydney Council (2001) NSWLEC 46 which reiterated what has been accepted practice in the Court in assessment of SEPP 1 variations since the Hooker v Hornsby , a judgment by Justice Cripps. There is agreement that these are objectives that are amendable to SEPP 1 objections. The question is whether the objectives of the standards are satisfied and whether in the circumstances of the case it would warrant or justify a variation.

18 . In particular the council contended that objective (d) to maintain solar access to new and existing dwellings was an issue and I am satisfied that the proposed development is one that satisfies the objectives. The orientation of the dwelling is not ideal but there is solar access still gained to the dwelling, in particular the rear open space, and with respect to (e) to maintain privacy for residents in existing dwellings and promote for privacy for residents in new buildings. The separation distance looking from the extension is some 10 m from the rear yard of that property, the proposal has been amended such that the extent of the glazing has been reduced and width of the balcony also reduced and setback some 900 mm from the edge of the walls and I am satisfied that also having regard to the fact that the extension is a bedroom area as opposed to a main living area, that the degree of overlooking is reasonable and that the objective in the circumstances in this case is met and therefore the SEPP 1 objection in respect of the building height is allowed as the objectives of the standard are satisfied.

19 . By way of comment the overlooking in areas such as this with fine urban fabric is such that mutual overlooking to a certain extent is acceptable there are instances where overlooking becomes unreasonable but in the circumstances of this proposed addition I consider the overlooking to be reasonable and not one that is out of character or context with the area.

20 . The other SEPP 1 objection, which is also a threshold question, is that concerning the building height plane which is contained in cl 18 of the LEP. The specific objectives of this are: to control the bulk and scale of buildings; provide separation between buildings; and preserve the amenity of existing dwellings in terms of shadow and privacy views and ventilation. The building height plane is breached and the fact that it is breached by the existing dwelling and other dwellings in the street is not the test. The test is whether the objective of this standard are met. I am satisfied that the objectives are satisfied. The proposed development does not present as an over bulky building, the scale is in keeping with the area in terms of residential scale and the bulk of the extension is to the rear but it is one that is acceptable.

21 . My assessment of the proposal in terms of the street frontage is satisfactory. The proposed extension will be barely visible when viewed from the street and will not significantly impact on the heritage of the street. From the street the extension will blend in with the roof lines of the adjoining property. A new roof of the same material is proposed. The proposal also satisfies the objective to provide separation between buildings, the extension to the property is setback and this objective is met. Objective (C) to preserve the amenity of the existing dwelling in terms of shadow and privacy views, ventilation and solar access. I am satisfied that the degree of overshadowing is reasonable in the circumstances in the context of the building height plane objective. In terms of privacy in my assessment, this is not unreasonable and it meets this objective. In terms of outlook from the side boundary there will be some outlook that is impacted but in the Court’s assessment in the circumstances of a side boundary relationship the proposal is satisfactory.

22 . In terms of ventilation and solar access the ventilation is one that was also described in terms of light, there is reasonable setback to provide ventilation and light to the dwelling at No. 9. The issue of general amenity to the property at No. 9, I am satisfied that the proposed extension is one that will not unreasonably impact on the amenity of that dwelling.

23 . The proposed extension in terms of the appearance from the domain, there is a public reserve behind the subject site and viewed from the public domain, there are places within that path that the extension will be viewed but it is not one that will be out of keeping or context in terms of the character of the area. From the public domain of the park at the rear there are many extensions to the buildings fronting Blues Point Road which are of a more modern nature which do not seek to mimic and should not mimic the old dwelling to which they are additions to. Also the proposal will be one that is not highly visible from the public domain and in that regard not highly visible from other properties except No. 9 but I have assessed this and I consider it to be a reasonable impact in terms of the amenity of that property.

24 . With respect to the issues raised by Mr Gallagher at No. 5 the proposal has been amended such that the balcony is setback 900 mm from the wall next to his property on the extension and there is a privacy screen proposed as well. I am satisfied from being in his en-suite at his top level (3rd) and having regard to the documentation before me and sight lines privacy is not an issue that would warrant refusal of the application.

25 . The issue of heritage is one that I must address as of the Court is the consent authority in this matter in terms of council’s LEP. The heritage clauses are set out at cll 48 and 49 of that LEP as well as the provision of the Development Control Plan cl 8.8. And I am satisfied the proposed development would not affect the heritage significance of the items having considered all the heritage expert’s reports who do not consider the proposal unsympathetic or inappropriate for a heritage building. Similarly in terms of the conservation area the proposal is satisfactory. I agree the importance of the front heritage presentation for this group of one storey building will not be adversely impacted in an unsatisfactory way in my assessment.

26 . Referring to the issues identified by the council. For the building height plane I consider the SEPP 1 objection should be upheld similarly for the building height. With respect to the issue of inconsistency with the desired character, I have looked at the character statement, I have looked at the character of the area during our walk this morning and I am satisfied that the character of the area will not be impacted by the proposed development. The proposal is in sympathy in terms of the streetscape, it is also an appropriate extension when viewed from the rear and the bulk and scale of the proposal would not warrant refusal of the application. The addition will be visible from certain points but that is not the test it is whether it is appropriate and reasonable in terms of the dwelling and impact on the conservation area.

27 . I have already addressed the issue of solar access and overshadowing and find that with privacy concerns these would not warrant refusal of the application. In terms of public interest I do not believe that the public interest in terms of variations to the NSLEP would warrant refusal of the application. The proposal is an appropriate addition to a heritage building which will provide for appropriate amenity for the occupants of the dwelling without undue impacts on heritage significance of the conservation area or the adjoining properties.

28 . Before I give the orders I should describe the development application. The development application is for a first-floor addition to the rear of a heritage building which is less than 50% of the floor area of the ground floor area. The existing attic in the roof of the dwelling is proposed to be extended by approximately half the area of the current attic. And the proposal can also be described as accommodating, a bedroom en-suite and a balcony with a width of 900 mm and new internal access stairs to replace the current ladder access to the attic.

29 . Therefore on the basis of my assessment, the orders of the Court are:

1. T he appeal in respect of No. 7 French Street, McMahons Point, is upheld.

2. The Development Application submitted to the North Sydney Council in respect of the above property and as amended are approved subject to the conditions contained in Annexure ‘A’ (the conditions are as handed up by the council with the additional conditions of the applicant).

3. The State Environmental Planning Policy objections in respect of cll 17 and 18 of North Sydney Local Environmental Plan 2001 are allowed.

4. The exhibits except for A and 4 are returned.
___________
J S Murrell
Commissioner of the Court
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