Lawson and Kearney v North Sydney Council

[2006] NSWLEC 198

Land and Environment Court

of New South Wales

CITATION:

Lawson and Kearney v North Sydney Council [2006] NSWLEC 198

PARTIES:

APPLICANT
James Lawson and
Simon Kearney

RESPONDENT
North Sydney Council

FILE NUMBER(S):

11180 of 2005

CORAM:

Bly C

KEY ISSUES:

Development Application :- Demolition of dwelling house, construction of 2-storey duplex/strata subdivision, loss of privacy, solar access, streetscape, overshadowing and noise, consent orders

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
North Sydney Local Environmental Plan 2001
State Environmental Planning Policy No. 1

DATES OF HEARING:

07/03/2006

EX TEMPORE JUDGMENT DATE:

03/07/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr G. McKee, solicitor
of McKees Legal Solicitors

RESPONDENT
Mr A. Stafford, solicitor
of Mallesons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

7 March 2006

11180 of 2005 James Lawson and Simon Kearney v North Sydney Council

This decision was given extemporaneously and has been revised and edited prior to publication.

JUDGMENT

1 This appeal relates to Development Application No. 109/2005 lodged on 21 March 2005 with the North Sydney Council. The application is for the demolition of an existing single storey detached dwelling and the construction of a new 2-storey duplex building including Strata subdivision at No. 24 Lloyd Avenue, Cremorne.

2 The site is described as Lot 8 in DP 11756 and is situated on the eastern side of Lloyd Avenue, which is a cul-de-sac. The site is effectively a corner lot having on its north side a 7.3 m wide right of way extending in an easterly direction from Lloyd Avenue. The site is rectangular in shape with a frontage of 12.19 m to Lloyd Avenue. It has a depth of just over 35 m and a total site area of almost 429 sq m.

3 The residential area surrounding the site is generally characterised by a mixture of single and double storey detached dwellings, and duplexes of varying styles and designs. Directly adjoining the site to the south is No. 22 Lloyd Avenue, a single-storey semi-detached dwelling which is predominantly oriented to the north, with the majority of its windows facing onto the subject site.

4 Situated in the Residential 2(a) zone under North Sydney Local Environmental Plan 2001, a duplex development of the kind here proposed is permissible with development consent, subject to a number of development standards. The site is also situated in the North Cremorne Character Area, specifically the Benelong and Northern Foreshore Neighbourhood. Strata subdivision also requires consent.

5 The application was notified in its original form and 14 submissions objecting to the proposal were received. Since that time the application has been modified at least twice and the modified versions of the proposal were communicated to those residents who objected to the original proposal.

6 The matters of concern expressed by the resident objectors include the following:

• Overdevelopment of the site including non-compliance with the building height plane and site area requirements in the LEP.
• Adverse impacts on the streetscape, particularly in relation to the design and style of the building, which would be aesthetically incompatible. It would also be too large and too bulky.
• Safety issues associated with the use of the right of way including inappropriate parking.
• The proposal would have an inadequate area of landscaping and insufficient setbacks.
• Insufficient off street parking and, as a result of the new vehicular access, a reduction in on street carparking.
• Additional traffic generation would reduce pedestrian safety in the cul-de-sac.
• The proposed building would not have the necessary appearance of a dwelling house and would not be responsive to the North Cremorne Character Statement that requires new development to reflect existing characteristic built forms.
• Loss of residential amenity including privacy and overshadowing, especially for No. 22 Lloyd Avenue.
  

7 Notwithstanding the recommendation contained in the report of Ms G Nalder, council’s senior assessment officer, that the proposal be approved, and following its site inspection the council decided to refuse the application for reasons:

• Development does not comply with minimum lot size of 450 sq m as per cl 22 of the LEP regarding duplexes;
• Alters the subdivision pattern in the street inappropriately;
• Development causes maximum impact on adjoining neighbour at No. 22 Lloyd Avenue. Active living areas of No. 24 Lloyd Avenue are alongside boundary of adjoining neighbour.
  

8 Since that refusal, the applicant has modified the proposal in response not only to those reasons for refusal but also in relation to the Statement of Issues dated 16 November 2005. In dealing with those issues, the Court was assisted by the Court-appointed expert town planner, Mr R Chambers.

9 The hearing began with an inspection of the site and its environs in the company of the advocates and Mr Chambers. Whilst on the site, the Court was assisted by Mr Chambers in understanding the site’s context, and the positioning of the proposal on the site and its relationship to its neighbours.

10 The Court then heard from the following residents:

• Mr T Moore of No. 26 Lloyd Avenue,
• Mr R Taylor of No. 28 Lloyd Avenue,
• Mr S Heyen of No. 17 Lloyd Avenue,
• Ms G Hayward of No. 10 Lloyd Avenue, and
• Ms C Porter of No. 22 Lloyd Avenue.
  

11 Those residents effectively reiterated the concerns, which they had addressed in their written correspondence. Explanations were given as to concerns about how the right of way might be inappropriately used for carparking, how the proposed building would be inappropriate in the streetscape and would have an unattractive appearance, how the traffic generated by the development would reduce the safety that presently exists for children that sometimes use the street.

12 Of particular importance and relevant to the issues in the case were the concerns expressed by Ms Porter. She expressed considerable concern as to the likely extent to which the proposed building would overshadow her north facing windows. She was also concerned that the proposed living areas would be too close to her property and would result in her being affected by noise. She was also concerned about the bulk and scale of the building as it would appear from her property, and possible impacts associated with site excavation. She was also concerned about possible loss of privacy.

13 Upon returning to Court, Mr Stafford for the council also tendered in exhibit 1, orders which seek the upholding of the appeal by consent of the parties. Those consent orders contain a comprehensive set of conditions which have been accepted by the applicant.

14 The respondent explained to the Court how the issues that were of concern to the council and as detailed in the document dated 16 November 2005, had now been resolved to council’s satisfaction, and based predominantly upon the eventual conclusion reached by Mr Chambers that the impacts of the proposal had been so reduced as a result of modifications that the proposal as now described by exhibit A was appropriate and that there were no remaining issues that would indicate that the application should be refused.

15 Prior to reaching this conclusion and in accordance with his initial report, Mr Chambers had concluded that, for the most part, the proposal was satisfactory, but he had residual concerns about impacts, especially overshadowing on No. 22 Lloyd Avenue. The revised scheme, whilst not being perfect, was now nevertheless acceptable.

16 I was taken through the Statement of Issues in some detail, particularly pointing to the discussion by Mr Chambers in his report and other relevant materials that enabled the council to conclude that the issues as originally articulated were no longer of determinative concern. Those issues comprise, firstly, the non-compliance with the building height plane in cl 18 of the LEP, and the associated overshadowing and visual bulk concerns, the non-compliance with cl 22 of the LEP in terms of the lot size for a duplex development, the character of the development and subdivision pattern, the internal design of the development, particularly the location of living areas, and the adequacy of landscaping.

17 Leaving aside for the moment the issue of lot sizes and the building height plane, I first note that the changes to the design have resolved any concerns in relation to the location of living areas, and the quantity and form of landscaping. The issue of subdivision is not a matter of any great concern given that the subdivision proposed is a Strata subdivision, and given also Mr Chambers’ conclusions in relation to the character of the development in the context of the Benelong and Northern Foreshore/North Cremorne Neighbourhood.

18 That brings me to what emerged as the two most important issues in the case. The site has an area of about 21 sq m below the minimum lot size requirement of 450 sq m, this being a development standard. The applicant has provided an objection under State Environmental Planning Policy No. 1- Development Standards. That objection identifies the objectives for duplex development including appearance as a dwelling house, avoidance of uncharacteristic building forms and avoidance of overdevelopment of small sites.

19 It argues that the proposal will appear as a 2-storey dwelling with an appropriate residential character and visual bulk. Its built form, whilst being contemporary, will not be uncharacteristic in the locality. Appropriate materials and colours have been chosen such that it will sit well within the mix of architectural styles in the street. It also recognises that the site has the benefit of being in effect a corner block to enable separation from adjoining development to the north-west.

20 It also argues that the bulk and scale of the development, taking into account landscaping, setbacks and floor space ratio, will be compatible with existing development, and taking also into account that the overshadowing and privacy issues associated with No. 22 are within reason, the objection should be upheld. Mr Chambers supports the conclusion within the objection and, for the reasons contained therein, I also support the objection and thus uphold it.

21 The final issue involves the building height plane development standard in cl 18 of the LEP and the associated concerns involving visual bulk and overshadowing of No. 22 Lloyd Avenue. Again being a development standard that in part is not complied with, the applicant has provided an SEPP 1 objection.

22 At the rear of the building there are areas of compliance and significant non-compliance. In this context I note that the proposed building, having a height of 7.55 m, is almost one metre lower than the 8.5 m maximum height required by cl 17 of the LEP.

23 The SEPP 1 objection notes that the building height plane objectives are to control the bulk and height of buildings, provide separation between buildings and preserve the amenity of existing dwellings in terms of shadowing, privacy, views, ventilation and solar access. In regard to these objectives, it makes the following points.

24 The proposal will appear as a single 2-storey dwelling from the street frontage and as such will achieve an appropriate residential character and visual bulk. The proposal prevents overlooking of No. 22 through the location and height of windows, and provision of privacy screens to second floor balconies. Increased building separation from the adjoining property to the south-east will improve ventilation and spatial separation while maintaining privacy.

25 The objection then goes on to describe in considerable detail the extent to which the building will overshadow the northern wall of No. 22 at both the winter solstice and the equinox. In summary, the solar access diagrams show that the living room windows at No. 22 receive more than three and three quarter hours sunlight during the winter solstice and during the equinox.

26 It also explains how the design mitigates against overlooking by way of the design of windows and the provision of privacy screens, and how the separation between the proposed building and No. 22 will facilitate more than adequate ventilation to them.

27 The objection concludes that it should be upheld because the proposed development satisfies the objectives of the standard.

28 Whilst it is clear that the solar penetration into No. 22 up until about midday is entirely satisfactory, there is no doubt that in the afternoon the windows are variously and progressively overshadowed. In this regard, however, I note that the impact of the proposal will be not terribly different to the impacts caused by the existing dwelling house on the site.

29 In all of the circumstances associated with the building height plane including overshadowing, privacy and noise, I accept the evidence of Mr Chambers for the reasons that he gives in his report and would therefore also uphold the SEPP 1 objection in relation to the building height plane.

30 There is one other issue that I should mention and that being the concerns expressed by at least one of the residents in relation to off street carparking. Each of the two dwellings is to provide one off street carparking space and the new driveway into the site will affect the availability of on street carparking. The requirements of the council are that a maximum of two carparking spaces per dwelling should be provided. By choosing to provide one car space per dwelling, this would meet the council’s requirement and indeed the associated objectives of the development control plan, North Sydney Development Control Plan 2002.

31 Whilst at times this will add to the parking difficulties within the street, this is not a reason for refusal of the application, particularly given the compliance with the DCP and noting the fact that there are numerous other dwellings in the street with only a single off street parking space.

32 In this same context, other residents who have access via the right of way were concerned that the additional demand for parking would result in parking in the right of way and potentially preventing access to their dwellings. Any such parking to the extent that it would deny access would not be in accordance with the terms of the right of way. Any such contravention is not a matter that can be resolved by the council being a private matter for the resolution of the owners. I cannot assume that its terms will not be complied with and I can expect that visitors to this development will park their cars lawfully.

33 Finally in this regard, I note that carparking was not an issue for the council, nor was it a matter of concern for Mr Chambers.

34 On receipt of a final BASIX certificate the orders will be, by consent:

1. The appeal is upheld.
2. Development application No. 1009/2005 lodged on 21 March 2005 for the demolition of the existing single storey detached dwelling and the construction of a new two storey duplex including Strata subdivision at lot 8 in DP 11756 being No. 24 Lloyd Avenue, Cremorne, is determined by the granting of development consent subject to the conditions in annexure A hereto.
3. Exhibits A, B, C, D and 1 are retained, and the Court notes that the parties have agreed to bear their own costs.

___________________

T A Bly
Commissioner of the Court
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