McCarthy v North Sydney City Council

[2019] NSWLEC 1373

Land and Environment Court

New South Wales

Medium Neutral Citation:	McCarthy v North Sydney City Council [2019] NSWLEC 1373
Hearing dates:	Conciliation conference on 25-26 July 2019; 31 July 2019
Date of orders:	08 August 2019
Decision date:	08 August 2019
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	The Court orders: (1)   Leave is granted to the Applicant to rely on the amended architectural plans and schedule of finishes set out in condition A1 of Annexure A. (2)   The Applicant’s written request under clause 4.6 of the North Sydney Local Environmental Plan 2013 (“NSLEP”), prepared by Chapman Planning Pty Ltd and dated 31 July 2019 (contained at Annexure B), for the non-compliance with the height of buildings development standard in clause 4.3 of the NSLEP is upheld. (3)   The appeal is upheld. (4)   Development consent is granted to Development Application No. 155/18 for alterations and additions to the existing dwelling on Lot 3 in Deposited Plan 813650, known as 7 Penshurst Avenue, Kurraba Point subject to the conditions of consent in Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 North Sydney Local Environmental Plan 2013
Texts Cited:	North Sydney Development Control Plan 2013
Category:	Principal judgment
Parties:	Michael McCarthy (Applicant) North Sydney City Council (Respondent)
Representation:	Counsel: M Staunton (Applicant)   Solicitors: Jaku Legal (Applicant) J Merlino, HWL Ebsworth Lawyers (Respondent)
File Number(s):	2018/363684
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of development application DA155/18 for consent to make alterations and additions to an existing dwelling house on land at 7 Penshurst Avenue, Kurraba Point, also known as Lot 3 in DP813650 (Site).

2. The proceedings have been brought to the Court under s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

3. Because the appeal concerns a residential development, it was dealt with under s 34AA of the Land and Environment Court Act 1979 (the Court Act). This section directs the parties to engage in a Court facilitated mandatory conciliation process convened under s 34(1) of the Court Act before any Court determination.

4. The conciliation conference in this case commenced onsite and I was the presiding Commissioner. During the Site view, I also inspected the adjoining townhouses/dwelling house owned by the objectors to the DA in order to better understand their written and oral evidence about view loss and amenity impacts attributed to the proposal. The parties, their legal representatives and the experts were also in attendance.

5. After the Site inspection, the conciliation resumed in the Court house at Sydney. At that time, the applicant decided to amend the architectual plans to further address the concerns raised earlier by the objectors and the Council. This resulted in the parties reaching an agreement as to the terms of a decision in the proceedings that would be acceptable to them. The decision involves the Court upholding the appeal and granting a conditional development consent to the amended application.

6. The amendments are contained in the architectural plans numbered DA01-DA14 dated 30 July prepared by Wolski Coppin. They incorporate the following modifications to the design:

• a reduction in the spring height of the upper level roof form from 2750mm to 2650mm.

• a reduction in the pitch over the bedroom and study from 15 degrees to 12 degrees and over the ensuite and stair to 5 degrees.

• a maximum ridge height of RL 51.54 (being a reduction of 200mm).

• a maximum floor to ceiling height of the upper level to 3.1m.

• a planter 600mm in width along the south/west of the balcony off the bedroom.

• obscure glazing to the window of the stair void to 900mm above Level 2 RL 48.18 to a height of 1600mm.

• the roofing material is now standing seam metal roof.

7. The amended application was supported with a revised cl 4.6 written request prepared by Chapman Planning Pty Ltd seeking approval for a variation of the 8.5m height of building standard in cl 4.3 of the North Sydney Local Environmental Plan 2013 (LEP).

8. The maximum height of the development when measured from the excavated level of the existing building varies between 9.365m-11.715m. This is due to the sloping topography of the Site and the rocky sandstone base on which the dwelling presently sits. Given this topography and the existing built form, the written request invites the Court to adopt a more practical approach to assessing the height by taking the measurement from the existing ground levels at the elevations of the building. When this approach is adopted to measure the maximum height, the request records that the proposed upper levels meet the height control at the north-east elevation and that the portions of the building exceeding the height standard will not be visually dominant from the public domain. The request concludes that the isolated encroachment of the 8.5m height standard, as identified on the plans at the southwest, will not generate unreasonable loss of views, including views of the city skyline, the Harbour Bridge and partial views of the Opera house sails from the townhouses at 9 Penshurst Avenue across the subject site.

9. In support of the amended application, the Court also received an addendum joint planning report prepared by the Council’s planner Mr Luke Donovan and Mr Garry Chapman. Relevantly, in my consideration of the public interest and cl 4.6(4)(a)(ii), these experts agree that the amendments to reduce the maximum height of the upper level (including the roof form) will ensure that the view impact from the Juliette balconies of townhouses 5 and 6 and the side facing bedroom/study window of townhouse 5 is minor. They believe that the amended application is a more skilful design which has resulted in reasonable view sharing and the satisfaction of the aims of the LEP in cl 1.2(2)(c)(i), the objectives (dot point 3 and 4) of the R2 Low Density Residential zone in the LEP and objective 02 in Part B, Section 1.3.6 in the North Sydney Development Control Plan 2013 (DCP).

10. The planners are also satisfied that the proposed planter box along the south western side of the level 2 balcony will ensure that reasonable privacy will be maintained with the adjoining property at 4 Billong Street. And, the inclusion of obscure glazing to part of the north eastern stairwell window will ensure reasonable privacy is maintained with the common open space at 9 Penshurst.

11. In respect of the jurisdictional issue raised by the breach of the height standard in cl 4.3 of the LEP, the applicant’s revised clause 4.6 written request focuses on the south western side of the upper level which exceeds the height standard when measured from existing excavated levels of the site. In acknowledging that this portion of the dwelling exceeds the 8.5m height control, the request seeks to justify the breach by demonstrating that the development still achieves the objectives of the standard. It is on this basis that the applicant submits that compliance with the standard is unreasonable and unnecessary in the circumstances of the case pursuant to cl 4.6(3)(a). In addressing each of the objectives of the standard, the request provides as follows:

“Objective (a): The upper level meets the 8.5m height control at the north-east elevation confirming the development is compatible with the topography of the site at the elevation. The variation to the 8.5m height control will not present unreasonable building height or scale compared to the existing building and neighbouring buildings.

Objective (b): The proposed alterations and additions to the existing dwelling will not significantly obstruct significant existing views, with an acceptable level of view sharing achieved over the proposed roof form to the city skyline, Harbour Bridge, Milsons Point and North Sydney from the townhouses at 9 Penshurst Avenue, Kurraba Point.

Objective (c): The proposed alterations and additions will not result in any unreasonable overshadowing to neighbouring properties.

Objective (d): The proposed alterations and additions will not result in visual privacy impacts to the adjoining properties noting upper level windows and balconies have been offset from adjoining dwellings and sight lines restrict direct overlooking. The portion of the building exceeding the height limit does not generate privacy impacts.

Objective (e): The proposed alterations and additions to the dwelling are compatible with existing development located within the visual catchment of the site. The locality is characterised by a diverse range of density, heights and building forms, the proposed building height will not be perceived from the public domain noting the site is a battle-axe allotment.

Objective (f): The proposed scale, density and design of the development is compatible with adjoining development and the R2- Low Density Residential Zone, thereby promoting the character of the area.”

12. The written request also identifies environmental planning grounds to justify contravening the standard as required by cl 4.6(3)(b). In that regard, it states that the site is a battle axe allotment and that despite the breach of the height standard the proposed scale and design is compatible with adjoining development and the R2 Low Density Residential zone objectives. The environmental planning grounds relied upon and said to be sufficient to justify the variation of the standard in this case include:

“• The variation to the 8.5m height control is a result of measuring the maximum height from excavated levels internal to the building. The variation is confined to the north-west portion fo the upper level. The majority of the upper level meets the 8.5m height control.

• The portions of the proposed upper level exceeding the height standard will not be read/perceptible from the adjoining properties or the public domain.

• The proposed upper level, including the portion that exceeds the height standard, presents an acceptable form and scale of development on the site that is compatible with housing in the locality.

• The proposed upper level, including the portion that exceeds the height standard, ensures that there is an acceptable degree of view sharing across the site from the townhouses at 9 Penshurst Avenue, Kurraba Point. Townhouses 5, 6, 7 and 8 retain views of Sydney Harbour from main living areas and private open space and views of the city skyline, Harbour Bridge and partial view of the Opera house from bedroom/study windows and associated small balconies across the subject site are maintained.

• The additional height of the dwelling, including the portion that exceeds the height standard, will not result in unreasonable overshadowing impacts to the adjoining properties and will not affect significant views from adjoining dwellings.

• The portion of the proposal that exceeds the height standard does not give rise to any visual privacy impacts and will maintain visual privacy to neighbouring dwellings.

• The proposed dwelling is an acceptable design for the Kurraba Point locality and the existing landscaping will continue to contribute to the landscaped setting ensuring the built form will be subservient when viewed from the private and public domain.

• The proposed upper level satisfies the Aims of the North Sydney LEP – clause 1.2(c)(i) in that the proposal will not adversely affect residential amenity in terms of visual and acoustic privacy, solar access and view sharing.

• The proposed upper level addition meets the relevant objects of the Environmental Planning and Assessment Act, 1979 as follows:

○ the proposal is an orderly and economic use and development of land being consistent with the height standard and the variation will not result in unreasonable amenity impacts;

○ the proposed upper level is a good design compatible with the built form in the locality and improves residential amenity of the existing dwelling house.”

13. Having regard to the above, the written request then addresses cl 4.6(4)(a)(ii) by concluding that the proposed development is in the public interest because it is consistent with the objectives of the building height standard and objectives of the R2 Low Density Residential zone. It states that a high level of residential amenity is achieved and maintained by the proposed alterations to the dwelling without compromising the amenity of the surrounding area. This conclusion is shared by the planners in their addendum report which I have referred to earlier, and also accords with my understanding of the amended application which I accept offers a more skilful design to that originally relied upon at the outset of these proceedings.

14. That said, under s 34(3) of the LEC Act, I am precluded from making a merit assessment of the amended application; I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. In this case, the parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. As identified, the only jurisdictional prerequisite that I must be satisfied about before this function can be exercised is an approval of the revised cl 4.6 request to vary the development standard in relation to height.

15. As required by cl 4.6(4)(a)(i), I am satisfied that the applicant’s written request has adequately addressed the matters required to be demonstrated by subcl (3). In that regard, I accept the proposed alterations and additions to the existing dwelling achieves the objectives of the height of buildings development standard despite the breach for the reasons outlined in the written request as outlined above and taken from pages 6 and 7 of the written request. That is, I accept that the variation to the 8.5m height control is responsive to the topography of the site and the resulting built form will not present unreasonable building height or scale compared to the existing building and neighbouring buildings in accord with objective (a). It is, as the request contends, unreasonable and unnecessary in this case to require compliance with the standard as the objectives of the standard are achieved. Furthermore, I accept the sufficiency of the environmental planning grounds relied upon by the applicant in the written request to justify the breach in this case. The environmental planning grounds relied upon focus on the aspect of the development in breach and the resulting impacts as required by the clause.

16. With respect to cl 4.6(4)(a)(ii), the written request states that the application to vary the height of building development standard in this case is in the public interest because it achieves the objectives of the standard and the zone. In that regard, I accept the agreed evidence of the planners in the addendum report which supports the variation on that basis as this accords with my own observations at the site and my understanding of the amended application. In this instance, there can be no precedent for any other development – the site is constrained by its topography and necessarily each case turns on its particular facts. In this case, the variation is acceptable because it is confined to the existing excavated level internal to the building, in all other respects, the proposal meets the height control at the north-east elevation ensuring the proposed upper level is compatible with the built form in the locality.

17. In this case, the variation of the height standard for the proposed building can be supported because it is not likely to raise any matter of significance for State or regional environmental planning. As addressed above, the non-compliance with the building height standard, measured internally, is considered to be in the public interest because the proposed development is consistent with the objectives of the height standard and the objectives of the R2 Low Density Residential zone.

18. The public benefit of maintaining the development standard is not considered significant because the variation to the height standard is measured from existing excavated ground levels, the proposed upper level complies with the height standard when measured at the north-east elevation, the proposed built form and scale are in accordance with housing in the immediate locality, the portion of the upper level exceeding the height standard will not be perceptible from the public domain and the proposal will ensure that a high level of residential amenity is achieved and maintained.

19. In my assessment, the proposal is consistent with the matters required to be taken into consideration before concurrence can be granted under cl 4.6(5) of the LEP. The exceedance of the standard will not result in adverse amenity impacts and is in the public interest.

20. Accordingly for the reasons outlined, I approve the cl 4.6 variation of the height standard and I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

21. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

22. The Court orders:

1. Leave is granted to the Applicant to rely on the amended architectural plans and schedule of finishes set out in condition A1 of Annexure A.

2. The Applicant’s written request under clause 4.6 of the North Sydney Local Environmental Plan 2013 (“NSLEP”), prepared by Chapman Planning Pty Ltd and dated 31 July 2019 (contained at Annexure B), for the non-compliance with the height of buildings development standard in clause 4.3 of the NSLEP is upheld.

3. The appeal is upheld.

4. Development consent is granted to Development Application No. 155/18 for alterations and additions to the existing dwelling on Lot 3 in Deposited Plan 813650, known as 7 Penshurst Avenue, Kurraba Point subject to the conditions of consent in Annexure A.

……………………………

S Dixon

Senior Commissioner of the Court

Annexure A (113 KB)

Annexure B (1.55 MB)

Plans and Schedule of Finishes (14.6 MB)

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Decision last updated: 08 August 2019