Julius Bokor Architect Pty Limited v North Sydney Council

[2006] NSWLEC 58

Land and Environment Court

of New South Wales

CITATION:	Julius Bokor Architect Pty Limited v North Sydney Council [2006] NSWLEC 58
PARTIES:	APPLICANT: Julius Bokor Architect Pty Limited RESPONDENT: North Sydney Council
FILE NUMBER(S):	11608 of 2004
CORAM:	Watts C at 1
KEY ISSUES:	:- Height bulk and scale - Roof form - Landscaping topography and loss of tree - Internal amenity and Driveway design.
LEGISLATION CITED:	North Sydney Local Environmental Plan 2001, (NSLEP2001) North Sydney Development Control Plan 2002, (NSDCP) State Environmental Planning Policy No 1 – Development standards, (SEPP1) State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development, (SEPP 65) Environmental Planning and Assessment Act 1979, ss 79C and 97
DATES OF HEARING:	08/02/2006
DATE OF JUDGMENT:	02/16/2006
LEGAL REPRESENTATIVES:	APPLICANT: Mr P W Larkin, barrister, instructed by Mr G J Englefield, solicitor SOLICITORS: TressCox Lawyers RESPONDENT: Mr M Causer, solicitor, with Ms M M Astridge, solicitor SOLICITORS: Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

16 February 2006

11608 of 2004 - Julius Bokor Architect Pty Limited v North Sydney Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the North Sydney Council (the council) to refuse a development application to demolish the existing buildings and to erect a part three-storey plus attic and part four-storey twenty seven (27) unit apartment building with a three level car parking basement at Lots 7, 8 and 9, DP 4785, and Lot A and B, DP 314891, being Nos 80, 82 and 84 Gerard Street, Cremorne.

2 I visited the land in company with the parties on the morning of the hearing. Local residents gave evidence. I viewed the site from adjoining streets and from the veranda of No 78 Gerard Street.

3 I have concluded that when considered under s 79C of the Environmental Planning and Assessment Act 1979, the proposal is satisfactory and I endorse the consent orders proposed by the parties.

The land

4 The land is situated on the northern side of Gerard Street, Cremorne, on the corner of Gerard Lane. Gerard Lane also forms the northern and eastern boundary of the land. The land is rectangular, in shape and has an area of 1,932.2m2, with a frontage of 38.775m to Gerard Street, and a northeastern boundary of 50.295m to Gerard Lane, a rear boundary of 38.065m to the southeast side of Gerard Lane, and a southwestern side boundary of 50.29m. The site has a cross fall of about 8.5m from the Gerard Street frontage to the northern corner.

5 Three detached dwelling houses are erected on the land and there are shrubs and trees including a Jacaranda and a Magnolia, both in good health. The Jacaranda is greater than 10m in height and is therefore protected by the council’s tree preservation order, (TPO), made under the council’s local environmental plan. This tree also screens from view of occupants of No 78 Gerard Street, the full visual impact of the fifteen-storey residential tower to the north of the land.

6 Abutting to the southwest is a detached dwelling house, and further to the west at No 6 Gerard Street is another detached dwelling house. On the opposite side of Gerard Lane, to the northwest, are dwelling houses, and to the north is the fifteen-storey apartment building. Nearby to the east and south are a mixture of single-storey to four-storey dwelling houses, townhouses and apartment buildings. The Cremorne shopping centre is located within 200 metres to the south.

Relevant planning controls

North Sydney Local Environmental Plan 2001, (NSLEP2001)

7 Under the provisions of the NSLEP2001 the land is zoned Residential C and the proposal is permissible with consent.

8 Provisions of the NSLEP2001 of relevance to the land are:

· Clause 14 relating to objectives and land-use tables for specific zones;

· Clause 16 relating to specific objectives for residential zone controls;

· Clause 17 relating to building height;

· Clause 18 relating to building height plane;

· Clause 19 relating to building setbacks;

· Clause 20 relating to landscaped area;

· Clause 25 relating to apartment building controls; and

· Clause 39 relating to excavation.

North Sydney Development Control Plan 2002, (NSDCP)

9 Section 7 (residential development), Section 9 (car parking), and the character statement for Waters Neighbourhood are of relevance to a consideration of this application under the provisions of the NSDCP.

State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development, (SEPP 65)

10 Under the provisions of SEPP 65, the principles, including Principle 2 (Scale) and Principle 4 (Density) have relevance.

The proposal and its history
11 Development application No 408/03 was lodged with the respondent council on 7 August 2003, to demolish three (3) existing detached dwelling houses and a carport and to erect a five-storey, twenty-eight (28), unit apartment building, (now amended to 27), with three (3) basement-car parking levels accommodating thirty-eight (38) cars, (now amended to thirty-seven (37) including seven (7) visitors’ spaces).
12 Access to the basement car park is along a 6.1m wide vehicle entry/exit driveway off the northern section of Gerard Lane at its lowest point. In addition to the car parking spaces in the basement, there is proposed one car wash bay, garbage store, bicycle lockers, 12 motor cycle spaces, storage for 13 bicycles, residential storage, 2 x 20m3 rainwater storage tanks, lift and stairway.
13 The latest amended plans include ten (10) studio apartments, (previously four (4)); seven (7) one bedroom apartments, (previously thirteen (13)); eight (8) two bedroom apartments, (previously nine (9)); and two (2) x 3 bedroom apartments as were originally proposed. Landscape works require all existing trees to be removed, although it was later agreed to retain shrubs along the western boundary.
14 The main pedestrian entry is proposed on the eastern side at the ground floor level with a pathway and stairs dropping down from the eastern part of Gerard Lane. Secondary pedestrian entries linked by pathways to the main entry are provided to Gerard Lane at the northern corner of the land and to Gerard Street at the southern corner of the land.
15 Originally, the proposed superstructure would have been setback a minimum of 11.3m from the southwestern side boundary with No 78 Gerard Street, (balconies setback 10.4m); a minimum of 7m to Gerard Street (the southeast boundary); a minimum of 6.4m to the southeast side boundary to Gerard Lane (balconies setback a minimum 4.6m-5.5m) and a minimum of 9.2m to the rear, northwestern boundary to Gerard Lane (balconies setback 8.5m).
16 These setbacks have been increased slightly in the later plans so that the setback the southwestern side boundary with No 78 Gerard Street is now a minimum of 11.427m, (balconies setback 10.4m); a minimum of 7.045m to Gerard Street; a minimum of 6.748m to the southeast side boundary to Gerard Lane, (balconies setback a minimum 4.4m-6.748m) and a minimum of 9.246m to the rear northwestern boundary to Gerard Lane (balconies setback 8.5m). The greater setbacks have potentially increased the landscaped area.
17 The proposed rear fence is to be setback 1.2m from the rear Gerard Lane boundary with a footpath partly on the subject land along the northwestern part of Gerard Lane, and a 2.0m corner splay is proposed to the northern corner of Gerard Lane. The council has requested that part of the Gerard Lane setback should be paved to widen the existing footpath.
18 The proposal is now described in the latest amended plans in Exhibit A, prepared by Julius Bokor Architect Pty Limited, Project No 0102, Drawing Nos A-O1 P; A-02Q; A-03R; A-04R; A-05S; A-06R; A-07R; A-08R; A-09R; A-10I; A-16F; A-16aF; A-25E; LAC-1 F; SD-1A; SD-2A; SD-3A; SD-4A; LCP-0lF.
19 SEPP 1 objections in relation to various standards under NSLEP2001, [Note: Exhibit E] have been prepared by Ms J Bindon, town planner, seeking flexibility in the application of:
· Clause 19(2) (Building setback);
· Clause 25(2)(a) (Facade length);
· Clause 20(2) (Landscaped area); and
· Arguably, as Ms Laidlaw commented, in respect of cl 17(8) (roof form).

20 SEPP1 objections in respect of cll 17(1)(a)(iv) and 17(5) (Building height), under NSLEP2001 are not required as the proposal complies with the 12m height control.

Notification

21 The application was notified to nearby owners and occupants on 12 August 2003, 13 May 2004, and 28 January 2005; and the council received eleven (11) submissions, and a submission from the Parks Precinct in respect of the initial application; three (3) further submissions, in respect of the amended plans notified 13 May 2004; eight (8) submissions, one late submission, and a submission from the Parks Precinct to the further amended plans notified 28 January 2005.

22 Further amended plans were received 25 July 2005 to which there were six (6) objections and then there were a further three objections to the current set of amended plans that are now before the Court in Exhibit A.

23 Internal referrals were made to the Development Engineer; Landscape Development Officer; Building Surveyor; Traffic Engineer and the council's Urban Design Advisory Panel.

24 The council considered the development application on 23 February 2003, when the council decided to defer the application and invite the applicant to submit amended plans to address various nominated concerns.

25 On 21 June 2004, the council considered amended plans and decided to defer the application to a site meeting.

26 A site meeting of Councillors, the applicant, adjoining owners and submitters was held on 10 July 2004.

27 On 26 July 2004, the council considered further amended plans and decided to refuse the application. It is this refusal, which is appealed against.

The council’s decision

28 By notice dated 26 July 2004, the council refused the application for the following reasons:

1. The proposal is an overdevelopment of the site indicated through the excessive height, its inappropriate design, massing and scale, and by virtue of the proposal’s following non-compliances with Council’s planning controls;
(a) The proposed building does not comply with the objectives for building height in Clause 17(1)(a) of the NSLEP 2001, which limit the height of buildings to three storeys in a Residential C zone, and prevent excavation of sites other than for garages and parking. In this regard, part of the building is considered to be four storeys in height, and excavation includes some of the landscaping.
(b) The proposed development does not comply with the building height standard of 12m set out in clause 17(5) of the NSLEP 2001, and the applicant has not submitted a SEPP 1 objection in respect of the departure from the building height standard. In this regard the maximum height of the building is 13.9m.
(c) The proposed building does not comply with the controls in Clause 17(9) of the NSLEP 2001, relating to attics, in that the floor area of the attic accommodation exceeds 50% of the area of the floor below which forms the third residential level of the building.
(d) The proposed development does not comply with the objectives for landscaping contained in Clause 20(1) of the NSLEP 2001 which seek to control site density and minimise site disturbance, nor with the landscaped area control of Clause 20(2), which requires 60% of the site to be landscaped. In this regard the proposal provides only 54.3% landscaped area.
(e) The proposed dwelling yield of 28 dwellings exceeds the dwelling yield of 21.5 dwellings (at 1 dwelling per 90m2 of site) nominated in Section 2.1 of the NSDCP 2002.
(f) The design of the development does not comply with the controls contained in NSDCP 2002 relating to:

· Topography (72m2 of the landscaped area is more than 500mm above or below the existing ground level).

· Context and roof design (the scale and extent of the building and the roof is out of character with adjacent and nearby existing and potential development).

· Landscaped Area and Landscaping (Non-compliant with requirement that landscaping be within 500mm of existing ground level).

· Energy Efficiency (Only 53% dwellings have the required NatHERS energy efficiency rating of four stars, compared to the required 80%).

2. The proposal is contrary to the design quality principles of SEPP 65 relating to scale and density:
(a) Scale: The proposal is contrary to the 3 storey scale identified for the desired future character of this area (ie: building height objective for Residential C zone in NSLEP 2001), and
(b) Density: The proposal is contrary to the desired future density stated in Section 7.1 of the NSDCP 2002 (ie: exceeds the identified site dwelling yield of 21.5 units by 30%).
3. The proposal is contrary to SEPP 65 Residential Flat Design Code in relation to:
(a) Building height (inadequate built form response to sloping site).
(b) Floor space ratio (exceeds maximum capacity/ allowable density/ dwelling yield identified in NSDCP 2002).
(c) Ceiling heights (top floor of 2 level units the floor to ceiling height below 2.7m required for the main area of an apartment -- floor to ceiling height only 2.4m).
(d) Internal circulation (more than 8 units have entry doors off double-loaded corridor at 2nd floor level).

THAT Council defend any appeal lodged.
THAT the applicant and the objectors be invited to attend an in-house meeting with Councillors and planning staff to discuss a more acceptable design.

The hearing

29 The applicant attended pre-lodgement meetings with officers of the council on 20 February 2002 and 2 April 2003. The council received amended plans on 22 December 2003; 6 May 2004; 5 July 2004, 27 January 2005 and subsequently.

30 The appeal was filed on 21 December 2004.

31 At the hearing the court heard evidence on behalf of the respondent council from:

· Mr J Locker, resident of No 4/15 Langley Avenue, Cremorne;

· Ms P Wilson, resident of 26/6-12 Prospect Avenue, Cremorne;

· Mr G Short, resident of No 78 Gerard Street, Cremorne; and

· Mrs A Short, resident of No 78 Gerard Street, Cremorne.

32 Ms M D Laidlaw was the Court-appointed town-planning expert.

33 Ian Pickles, Executive Assessment Planner, North Sydney Council, prepared the statement of basic facts dated 10 March 2005.

The issues

34 On 23 August 2005 the council filed an amended statement of issues.

Height, bulk and scale

Roof form

Particulars: The vertical prolongation of the sidewall of the building into the attic space and the lack of eave overhangs produces an in appropriate form that add to the bulk and scale and unsatisfactory appearance of the building.

Landscaping and topography

Poor internal amenity

Particulars:

Driveway design

Particulars:

(a) The design of the driveway fails to comply with the maximum gradients for footpath and driveway under Council's specifications and Disabled Access Code Requirements.
(b) The headroom at the driveway entry (2.09m) does not comply with the requirement by the Australian Standard 2890.1.2004.

35 Despite the council seeking consent orders the Court is required to satisfy itself in regard to the salient issues including:

· Height, bulk and scale;

· Roof form;

· Landscaping, topography and loss of tree;

· Internal amenity; and

· Driveway design

The evidence and findings

36 Ms Laidlaw assessed the latest amended plans and stated:

In my opinion, the amendments to the building form, massing, scale and design have satisfactorily addressed the previously outstanding issues of ‘bulk and scale’ and I conclude that the amended design would be consistent with the character of the area and the objectives of the LEP and DCP in this regard. This has been achieved through a greater level of articulation of the built form, the revision to the roof and eave line profile, the removal of the obviously prolongated wall into the attic level, and a more balanced treatment (solid to void) of the fenestration and balcony treatments.
Amended SEPP 1 [objections] may be appropriate having regard to the amended design of the current proposal, however, for reasons set out in my statement of evidence and above, I consider that there are circumstances of the site and/or design that justify the variations sought, and that the proposal does not offend the underlying objectives of the LEP or relevant standards. Accordingly, I believe SEPP 1 objections in relation to these standards should be supported.
I have not identified any internal or external amenity issue that would justify refusal. Although the proposed building will have a different character to single family development immediately to the west, it is well set back, in landscaped grounds, from that boundary, and the scale is not inconsistent with that which the zoning anticipates.

37 Under the town-planning regime in North Sydney, the development controls of height, setbacks, landscaped area, excavation of land, take the place of the more traditional floor space ratio to limit the bulk of development. The significance of these planning controls as a ‘package’ cannot be stressed too greatly, and are required to place limits on development when applicants seek to maximise development. In this case, these planning controls were originally exceeded and as a result the council properly refused the development application and formulated the issues in this appeal.

38 The applicant has now amended the plans and the council seeks a consent award and the matter has been set down for a half-day Court hearing. However, the Court is not a ‘rubber stamp’ and is required under s 79C of the Environmental Planning and Assessment Act 1979 to properly assess the application. This is all the more important as some nearby residents have remaining concerns about the proposal.

39 The proposal is four-storeys in height in the northwestern sector of the land and three-storeys plus attic in the southeastern part of the land. It complies with the 12m-height control under cl 17(1)(a)(iv) of the NSLEP2001 in an area where the maximum height is limited to three storeys or the height indicated on the map, [Note: Exhibit 7, p 25]. In this case the height is limited to 12m. In order to meet this height limit the proposal steps down towards the northwest where the land is lowest.

40 The proposal also complies with the building height plane in the Residential 2(c) zone under cl 18(3) of the NSLEP2001, [Note: Exhibit 7, p 27]

41 The proposal is for now twenty-seven (27) units where the maximum is around twenty-one (21) at the rate of one unit per 90m2 under the development control plan. The allowable rate of one unit per 90m2 is a broad planning control and does not make allowance for unit size and 21 large units might have been erected on the land had all the other planning controls been complied with. In this case some of the units are studios and one-bedroom units and, thus I am satisfied that the density is satisfactory compared with the likely bulk of 21 large units. In coming to this conclusion I have had regard to the evidence of Ms Laidlaw and the proposal’s compliance with other planning controls. There remain some breaches of the planning controls and this is an indication to me that the proposal is stretching the controls to the limit. It breaches the roof form control by incorporating a flat section in the roof over the attic and the landscaped area control. Were it to comply with these fundamental controls of roof form and landscaped area a fully pitched roof might have been provided and the number of units might have been reduced.

42 Other indicia of bulk are the relationship of the ground floor of an apartment building to the natural ground levels which are contained the in the excavation controls. In the present case there is a close relationship between these two although the ground floor is well below the level of Gerard Streets and Lane. Also, the gradient of the proposed vehicular ramp to the basement complies with AS 2890.1 suggesting that the slope of the ground has been utilised.

43 The scale of development at one level refers to the overall bulk of the building and the way in which it ‘fits in’ with the streetscape. At another level, the human scale is the articulation, or the modulation of the building, the play of light and shade on the facades, the materials, textures, colours and detailing.

44 Ms Laidlaw commented on the most recent amendments that relate to the scale and bulk of development:

The issues concerning the prolongation of the wall into the attic level and lack of projecting eaveline have now been addressed satisfactorily addressed - the prolongation of the wall has been disguised through a re-proportioning of the facades and the extension of the roof form into an eave overhang.
The proportion of window openings has been changed and is satisfactory. The visual balance of the elevations generally, is much improved.
In my view, the issues raised in respect of Issue 1(b) (facade lengths facing Gerard Street and Gerard Lane) have been satisfactorily addressed.

45 I am satisfied that the proposal although reaching the maximum potential and perhaps exceeding it in places is not of such height, bulk and scales as would warrant refusal on grounds of height, bulk and scale.

SEPP1 objection in relation to cl 19(2) (Front setback) of the NSLEP2001

46 The front setback would be exceeded as this control is determined by averaging the setback of the existing buildings on the site or adjoining land, [Note: Exhibit 7, cl 19(2), p 28]. An SEPP 1 objection has been lodged in regard to the front setback standard.

47 Ms Laidlaw provided no comment on this issue, as the front setback was unchanged from the previous iterations of the proposal.

48 Ms Bindon, who is the town planning consultant for the applicant, argued for some flexibility in relation to the front setback standard and concluded that compliance with the standard is unnecessary or unreasonable in the particular circumstances of this case on the grounds that:

· the front setback would be the same as the existing dwelling house on the land;

· the proposed setbacks are not inconsistent with those of other buidlings in the area and provide for a landscaped setting;

· good outcomes in terms of streetscape, privacy, sunlilght, and amenity would be the result; and

· is consistent with the planning objectives to minimise adverse effects of buildings on the streetscape, privacy, solar access and amenity.

49 I accept her statement and consider the SEPP1 objection to the setbacks and in particular the front setback is well founded.

SEPP1 objection in relation to cl 25(2) (Façade length) of the NSLEP2001

50 Under cl 25(2) of the NSLEP2001 an apartment building must not be erected if “…the length of any façade facing the street is less than 9 metres or more than 15 metres.”

51 The objective of the standard is:

(a) reduce the adverse effect of larger scale buildings and ensure that apartment buildings do not dominate the streetscape, and
(b) ensure that dwelling-houses or duplexes will not be left isolated on sites that are not reasonably capable of development for apartment buildings.

52 Ms Laidlaw commented in this regard:

The articulation has been significantly remodelled on the eastern elevation, providing an indented section set in 2 metres from the northern limb on the building and 3 metres from the southern limb.
Further work has been undertaken in terms of the detailed articulation of the facades.
Additionally, with the stepping in of the building, the roof form has been amended, to include a flat section in the middle (on the eastern elevation), with the roof form raised to accentuate the dominant corner element, (ie at the south eastern corner, intersection of Gerard Street and Gerard Lane east). This roof is now at RL-85.5, compared to the lower roof form on Gerard Street, at RL 84 and the lower roof on Gerard Lane east, at RL 85.

53 Ms Bindon justified the departure by stating that compliance with the standard would be unnecessary or unreasonable for reason that:

· the scale of the proposed apartment building is not inconsistent with other buildings in the locality;

· the proposed façade gives a good level of articulation;

· the departure provides a better planning outcome; and

· the proposal is consistent with the planning objectives.

54 The council has accepted this objection and is prepared to grant consent orders. I consider there is sufficient articulation of the facades and the proposal is broken up into two apparently separate sections with separate roofs. I accept the reasons given and that the SEPP1 objection to façade length is well founded.

Roof form

55 The proposal complies with the 12m-height limit under cl 17(1)(a)(iv) of the NSLEP2001. However, the applicant is seeking to have the elevated part of the proposal considered as three-storeys plus attic.

SEPP1 objection in relation to cl 17(8) of the NSLEP2001

56 Clause 17(8) of the NSLEP2001 deals with roofs and:

A building must not be erected in a residential zone unless the building as a pitched roof, except where the building has another roof form identified in a character statement for the neighbourhood concerned as being, or as being compatible with, the characteristic roof form for the neighbourhood.

57 Ms Laidlaw commented on the latest amendments:

In relation to Clause 17(8) of the LEP (now repealed under NSLEP (Amendment 6)), the proposed development still does have a pitched roof form, and in terms of views from public places this remains the dominant roof form. As noted, in respect of the original proposal, it is a roof profile, which is pitched, but also incorporating flat roofed elements. I would support the proposition of the applicant that, as drafted, the standard does not preclude alternative roof profiles in addition to a pitched roof form and therefore the proposal complies with this clause. It would also be counterproductive, in the current circumstances, to reject the current roof design option on the basis of Clause 17(8) where this design serves a particular purpose in improving the streetscape appearance of the development.

58 Ms Bindon considered the underlying purpose of this standard is to achieve a characteristic roof form, and considered that compliance with the roof form standard is unreasonable or unnecessary in the circumstances of this case as:

· the clause has now been repealed by the council in Amendment 6 of the NSLEP2001;

· the proposed roof would not be out of character with the area;

· the proposal is consistent with the planning objectives of the locality.

59 The applicant has agreed that the tiled section of the roofs should be of “Marseilles pattern unglazed terra cotta” and a condition is proposed along these lines. Also the flat section of roof should be of a material and colour to match. The occupants of the residential tower to the north of the land would be able to look down on the roof; the fifth elevation, and it should be designed to take account of this. Also from the street and public places the proposal would present with a pitched tiled roof in keeping with development in the surrounding area.

60 The respondent council did not press this issue and I am satisfied that this objection is well founded.

SEPP1 objection in relation to cl 17(9) (Attic floor space) of the NSLEP2001

61 Under cl 17(9) of the NSLEP2001 [Note: Exhibit 7, p 26] “…a building must not be erected…if the attic of any dwelling within the building exceeds 50% of the area of the floor below it, within the same dwelling.” In this regard the proposal complies with the 50% standard overall but exceeds 50% of the floor area below it within the same dwelling.

62 The objectives are those for the area generally, to provide development that is appropriate to its context and enhances the amenity of North Sydney.

63 Ms Bindon considered compliance with the standard to be unnecessary or unreasonable for reason that the proposal complies with the current attic floor space standard in Amendment No 6 in Exhibit 8.

64 The council did not take issue with this and I consider the SEPP1 objection in this respect to be well founded.

Landscaping, topography and loss of tree

65 The landscaped area required under the NSLEP2001 is 60% of the land and the proposal provides around 56% of the land area as landscaped area, [Note: Exhibit 7, cl 20(2), p 29]. The deficiency is accounted for by not including the area under the eaves as landscaped area and several areas that are excavated below 500mm. The applicant contends that if the area under the eaves and the excavated areas within the landscaped areas are included in the landscaped area, the proposal would comply.

66 Ms Laidlaw commented on the latest amendments to the plans:

LAC-1 F provides a re-calculation of the landscaped area, including and excluding the area beneath the projecting eave, which is now incorporated in the design of the proposal.
The figure including the area under the eaves is 60.1 (which on the applicant's view, complies with the 60% standard under the LEP…) and the figure excluding the area under the eaves is 56.8%.
Both of the applicant's figures include areas subject to excavation and thus arguably “not at ground level” and therefore not technically able to be included. I have previously indicated, however, that I believe a SEPP 1 is supportable in respect of these areas, because the excavation is limited in extent, dictated by the particular circumstance of the irregular topography of the site, and required to achieve access for people with a disability.

67 Despite this, the merit issues with regard to landscaping and topography have been largely resolved between the parties. The applicant has provided an SEPP1 objection to the deficiency of landscaped area and there was no issue remaining between the parties that would preclude this SEPP1 objection being upheld.

SEPP1 objection in relation to cl 20(2) (Landscaped area) of the NSLEP2001

68 Ms Laidlaw further commented in relation to the landscaped area under the eaves:

…the proposed roof was originally submitted without eave overhangs, and I recommended that this feature should be included. North Sydney Council has historically excluded areas beneath eaves, from landscaped area (as the eaves constitute building areas ‘above ground’). The current version of the DCP (Section 7) provides, however, that “landscaping under eave overhangs no greater than 450mm may be included in the landscaped area calculation provided a 1.2m minimum set back is available” (both of these criteria are met in the development). Although there may remain a technical discrepancy with the LEP [in Exhibit 7], therefore, the planning intent of the DCP supports the view that a concession should be afforded in respect of the area under the eave. Given this, and the fact the inclusion of the eave arose from an earlier recommendation I believe the landscaped area is satisfactory. A SEPP 1 supports any variation in respect to the “not at ground level” issue referred to above.

69 Ms Bindon identified the objects of cl 20 of the NSLEP2001 as being to:

(a) to promote characteristic landscaping and streetscapes, and

(b) provide usable private open space for the enjoyment of residents, and

(c) provide a landscape buffer between adjoining properties, and

(d) maximise retention and absorption of surface drainage water on site, and

(e) minimise obstruction to the underground flow of water, and

(f) promote substantial landscaping including trees which grow to a minimum height of 15 metres, and

(g) control site density, and

(h) minimise site disturbance.

70 Ms Bindon considered compliance with the standard for landscaping to be unnecessary or unreasonable in the circumstances of this case and the council had agreed.

71 The applicant asks the Court to apply flexibility in respect of a deficiency of 3.17% if the excavated areas of the site along with the area under the eaves are excluded from landscaped area. The landscaped area thus calculated is 56.8% of the site area and less than the 60% required. I have carefully assessed the applicant’s SEPP1 objection in respect of landscaped area and have concluded that it is well founded.

The Jacaranda

72 The Jacaranda is protected by the council’s tree preservation order, (TPO), made under NSLEP2001. The TPO has:

…the aim of retaining in healthy condition and in natural shape and form, those trees which are currently or which will become, visually, historically, horticulturally or environmentally valuable to the community of North Sydney. The order is also to serve as a platform for educating the community on the importance of trees in the urban environment and the arboriculturally correct techniques for managing them.

73 Under Part F of the TPO:

Where approval has been issued by way of a Development Consent, which also permits the removal of trees covered by this Order, a separate application under the Tree Preservation Order is not necessary. However, should the Development Approval lapse, then an application under the Tree Preservation Order shall be required.

74 Ms Laidlaw addressed the retention of the tree:

Extensive discussions have occurred between myself, and the representatives of Council and the applicant on the issue of the Jacaranda tree.
It appears that the vehicular access to the site is highly constrained, in terms of the vertical alignment of Gerard Lane, from which access must be obtained, and the levels within the site. In addition, during the course of the development application's assessment, I understand that the relevant standards have been made more stringent, necessitating an amendment to the driveway design. A number of options were discussed with a view to improving the prospects that the tree be retained, however I am satisfied that without a complete redesign of the whole building this could not be achieved. With regard to that proposition, it will be noted that given the sloping and irregular topography, access other than at the lowest point, as proposed, would be difficult to reasonably achieve.
The sum of these discussions is that the Jacaranda tree cannot feasibly be retained. This circumstance was previously accepted by Council's officers, and a recommendation for replacement tree planting imposed.

75 I understand that the council now no longer raises any issue with regard to the removal of this fine tree, and by delegating authority to the “…General Manager to determine Development Application No 408/03 subject to appropriate conditions or in the absence of a discontinuance to deal with the matter by consent orders…” the council has consented to its removal, [Note: Exhibit 3, Fol 33, Report 5 December 2005 now adopted].

76 I have satisfied myself that given the intensity of development and the size of the underground car parking area and the tightness of the vehicular access associated with the car parking area, that the tree cannot be practically saved. Ms Sonter the landscaper for the applicant has indicated that this tree cannot be saved and would be replaced by semi-advanced stock including Angophora costata, Sydney Red Gum. I accept that summary of the situation and would not refuse the application for this reason.

Internal amenity

77 The parties are agreed that any deficiencies in this regard have been addressed and this issue was no longer pressed.

78 Ms Laidlaw commented on the latest plans:

The issue of the ‘awkward room configurations’ now seems to be resolved under the further amended plans. The internal amenity issues otherwise remain much the same as before and in that regard are satisfactory.

79 Mr Short, of No 78 Gerard Street, the abutting property to the west was concerned that the proposal would be overshadowed by the fifteen-storey residential flat building to the north of the land. He provided shadow diagrams in Exhibit 15 to graphically show the shading of the subject land. There would be shade over the land around midday, at all times of the year. The council in making the NSLEP2001 under Part 4 of the Environmental Planning and Assessment Act 1979 has determined to permit on the subject land, development under the residential 2(c) zoning, presumably after public notification under the Act. I consider this overshadowing concern to be no reason to refuse the application.

Driveway design

80 The driveway gradients now comply with AS 2890.1- 2004 and there is no issue remaining in this regard. I would not refuse the application for this reason.

81 For the above reasons, the appeal is upheld by consent.

Conditions

The conditions are those in Exhibit 12 as amended during the hearing.

Costs

82 The parties have requested that costs are reserved.

Consent orders
83 The consent orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.
2. The State Environmental Planning Policy No 1 objection prepared by JBA Urban Planning dated January 2005, in respect of cl 19(2) (Building setback), of the North Sydney Local Environmental Plan 2001, is upheld.
3. The State Environmental Planning Policy No 1 objection prepared by JBA Urban Planning dated January 2005, in respect of cl 25(2)(a), (Facade length) North Sydney Local Environmental Plan 2001, is upheld.
4. The State Environmental Planning Policy No 1 objection prepared by JBA Urban Planning dated November 2005, in respect of cl 20(2), (Landscaped area) North Sydney Local Environmental Plan 2001, is upheld.
5. The State Environmental Planning Policy No 1 objections prepared by JBA Urban Planning dated May 2005, in respect of cl 17(8), (Roof form) and cl 17(9) (Attic floor area) North Sydney Local Environmental Plan 2001, are upheld.
6. Development application No 408/03 lodged with the respondent council on 7 August 2003, to demolish three (3) existing detached dwelling houses and carport and to erect a part three-storey plus attic and part four-storey, twenty seven (27) unit apartment building with a three-level car parking basement with thirty-seven (37) car spaces at Lots 7, 8 and 9 of Section 3, DP 4785, and Lot A and B, DP 314891, being Nos 80, 82 and 84 Gerard Street, Cremorne, is approved subject to conditions 1 to 92 in Annexure A.
7. The exhibits with the exception of Exhibits A, B, C, D, E, 1, 2 and 12 are returned.

S J Watts
Commissioner of the Court
sw

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

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Citations

Julius Bokor Architect Pty Limited v North Sydney Council [2006] NSWLEC 58

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