Meehan v North Sydney Council

[2007] NSWLEC 860

Land and Environment Court

of New South Wales

CITATION:

Meehan v North Sydney Council [2007] NSWLEC 860

PARTIES:

APPLICANT
Mary Margaret Meehan

RESPONDENT
North Sydney Council

FILE NUMBER(S):

10945 of 2004

CORAM:

Murrell C

KEY ISSUES:

Section 96 Modification :- Soft landscaping area

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
North Sydney Local Environmental Plan

DATES OF HEARING:

30/10/2007 and 2/11/2007

EX TEMPORE JUDGMENT DATE:

12 November 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr Kildea, barrister
instructed by: Ms T. Hunt
of Shaw Reynolds Bowen & Gerathy

RESPONDENT
Ms S. Puckeridge, solicitor
of Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MURRELL C

12 November 2007

10945 of 2004 Mary Margaret Meehan V North Sydney Council

This determination was given extemporaneously and for the
sake of clarity has been edited prior to publication

JUDGMENT

1 This is an appeal under s 96(6) of the Environmental Planning and Assessment Act against North Sydney Council’s determination of an application for modification. By way of background the Court previously in an earlier appeal considered a development application for the subject property and granted approval to alterations and additions to the heritage item. This approval by the Court was 25 November 2005.

2 The subject site is 40 Kirribilli Avenue, Kirribilli on the north-eastern corner with Broughton Street.

3 The Court notes that the Council has previously approved other modifications to the consent as originally approved by the Court and the schedule of amendments to the plans currently before the Court shows:

• 19 January 06, a s 96 modification for a new wall to the west boundary added, entry gate moved, a number of roof lights added to the kitchen, laundry layout revised, door to bedroom two moved, door to bathroom changed to sliding door; and
• Version P of the plans of 31 March 2006, a s 96 modification, kitchen and courtyard floor levels retained, number of stairs modified to suit, ground level retained off front veranda, brick wall retained along southern boundary with new brick wall return around south-western corner, position of gate to rear fence modified, tree removed outside kitchen window, laundry layout revised, door to WC moved, wall to dining room bricked in.
• Version Q. 15 January 2007, new garden shed added, extend paving from veranda, air conditioning plant added.

4 The version Q application before the Court has the effect of reducing the soft landscaped area.

5 In my determination of the above application I have had regard to all the evidence. These proceedings commenced as an on-site hearing and as such the Court also then had the benefit of further material being provided in terms of the calculation for landscaped area. The applicant prior to the scheduled judgment last week sought for the matter to be adjourned to allow for a recalculation by a surveyor of the landscaped area, and the adjournment was granted.

6 Mr Shiels provided a Statement in Reply to Contentions, which also serves as a Statement of Evidence on behalf of the applicant. He was in attendance at the on-site hearing as was Mr Mossemenear, Council’s senior assessment officer in this matter.

7 It is noted that approval was recommended for the modifications, however the Council decided that approval should not be granted for certain elements. For the record this s 96 modification application includes: construction of a garden shed; air conditioning plant located beneath a suspended garden area. The Council approved the latter on 20 March 2007. The third amendment in this modification application is to remove the planter boxes from the external wall and this was agreed to. Four is to replace the soft landscaped area of the lawn with paving at the front of the terrace house. The two matters under contention are the construction of the garden shed and the replacement fo the lawn with paving.

8 For the Court record on 20 March 2007 the Council granted approval to modify consent 723/04 and 340/06 subject to the following and I quote:

1. No approval is given for the garden shed.

2. Approval is given for the plant room.

3. The masonry pots are to be removed.

4. The turf grass in the front courtyard is to be replaced with soft landscaping suitable for the conditions prevailing in that area.

5. Approval is given for the floor area directly below the new glass roof.

9 The contentions outlined by the Council are that the landscaping, the proposed shed and paving are inconsistent with LEP 2001 and DCP 2002 for North Sydney. The development consent issued by the Court allowed the applicant to significantly reduce the landscaped area of the development to an amount below the 50 per cent of the site area required under LEP 2001.

10 The modifications in contention result in a further reduction of landscaped area from the Court-approved 31 per cent to, on one calculation or 28 per cent on another. The shed will increase the amount of built-upon area by 4.5 square metres. The concrete slab for the paved area is installed over an excavated area adjacent to the western boundary further reducing the landscaped area by approximately 9.8 square metres. Therefore these two items reduce the landscaping to 25.5 per cent, however it is noted there is soft landscaping over the concrete slab with adequate soil depth at roughly the previous ground level and this is visible from Broughton Street as soft landscaping. To include the landscaping over the slab would bring the landscaped area back to 28 per cent.

11 The surveyor provided figures in Exhibit D that relate to the lawn area originally approved by the Court as 14.8 square metres, and the brick garden shed, it was ascertained on-site by measurement that it is approximately 4.2 square metres, providing some 20 square metres of reduced soft landscaping area for the modification application now before the Court.

12 The experts’ joint report, that became Exhibit D, prepared by Mr Shiels and Mr Mossemenear states the landscaped area of the site defined in the Council’s control means:

“that part of the site that is generally at existing ground level that is not occupied at or above or below ground level by any building structure, swimming pool, hard surface area or the like that is proposed to be predominantly landscaped by way of plantings, gardens, lawns, shrubs or trees, and that is available for use and enjoyment by the occupants of the building erected on the site, but does not include any areas for access driveways and parking.”

13 Site area means:

“the area of land to which an application for consent under the Act relates, including any development on which the development to which the application relates is permitted by or under this plan but excludes the area of any access-way, right-of-carriage or the like.”

14 The minimum requirement for landscaped area under cl 20 of the North Sydney LEP is 50 per cent. The required landscaping for subject site is 132.15 square metres.

15 Section 7.4 of the DCP requires 80 per cent of the landscaping as soft landscaping; therefore soft landscaping for the subject site should be 66 square metres. There is no definition of soft landscaping. It is agreed by the experts that it includes landscaping by way of plantings, gardens, lawns, shrubs or trees. It is agreed that the site area excludes the right-of-way and therefore is 264.3 square metres. It is agreed the verandah is 9.7 square metres, the porch 2 square metres and plant room 9.6 square metres are not included as landscaped area by definition.

16 The Court-approved landscaped area includes the area occupied by the brick shed, plant room and other areas shown as soft and hard landscaping on the survey other than the porch and veranda, that is 36.5 per cent of the site. The soft landscaping of the Court-approved landscaping includes 1 metre wide landscaping in the north-east corner, an area of 5.5 and 15.8 for the southern courtyard. That is 65.49 per cent.

17 The shed and plant room are not included as a landscaped area and the landscaping currently on site equals 31.29 per cent of the site. The soft landscaping of the landscaping currently on-site equals 32.3 square metres, that is 39 per cent of the landscaping.

Findings

18 The Court has considered the application in terms of whether it is substantially the same development and I am satisfied the proposed modification in terms of s 96 is substantially the same development. As such, a merits assessment is required of the application and in terms of s 96(3) in determining an application for modification of the consent, the consent authority must take into consideration such of the matters referred to in s 79C(1) as are of relevance to the development the subject of the application.

19 Being satisfied it is substantially the same development I now turn to a merits assessment of the application.

20 There is also no question that s 96 applications can be retrospective and the authority for this is the judgment of Talbot J in Windy Dropdown Pty Limited v Warringah Council (2000) NSWLEC 240. When the Court carried out its site inspection I could see that the garden shed has been erected as shown on the modification application. It was also noted that the front paved/concreted area proposed under the modification application, that is, what was previously shown as turfed area on the plan approved by the Court in front of the front verandah, whilst it had soil over the hard paved area the applicant said the soil was at a depth of some two inches.

21 It was submitted on behalf of the applicant that given the southerly orientation of this piece of turfed area that it was difficult to maintain, that is in terms of grass growing or whether that would be in terms of maintenance. However in my assessment the grass was not given an opportunity to be sustainable being planted over a hard paved and concrete surface with a minimal soil depth such that the likelihood of its survival would be remote. Furthermore, the orientated of this turfed parcel of open space has not changed, it has always had a southerly orientation and turf certainly survives in other southerly orientations locations with appropriate soil depth etc. This parcel also has the benefit of sun at certain times of the day.

22 These proceedings are not punitive proceedings, that is, just because the works have been carried out does not mean that the application should not be approved. By the same token, the fact that the works have been carried out does not mean that they should be approved and this was not submitted on behalf of the applicant.

23 It was submitted on behalf of the applicant that there have been approvals by council of s 96 modifications. In particular the fence at the front of the dwelling house was approved by the Council to be a masonry brick fence as opposed to the original consent granted by the Court which was for palisade fencing, similar to the western boundary fence to the terrace.

24 In the Court’s judgment of 16 June 2005, on preliminary findings concerning the merits of the application, with respect to the issue of landscaping it was agreed by the four experts at that time that the proposed soft landscaping and fencing will be positive and enhance the appearance of the dwelling. In particular:

this judgment states at paragraph 24 when viewed from the harbour side, the palisade fencing is to be reintroduced which will add to the amenity and heritage of the subject dwelling. The reduced area of some five square metres in terms of the ground floor extension in the circumstances I consider it appropriate and that the visual contribution of the landscaping and high visibility with palisade fencing of the terrace will be an enhancement of the subject dwelling.

25 In terms of a merits assessment I also note that a SEPP 1 assessment, for a reduction of the landscaped area, is not required. There is authority in this Court that a SEPP 1 objection is not required for a s 96 application. At the same time I must evaluate the application on its merits in terms of any environmental planning instruments and DCPs including also suitability of the site and the public interest.

26 I will say at this point, given that this is a verbal judgment, I have decided that the s 96 modification application should not be approved. In my assessment the changes represent cumulative changes and ‘development by creep’ and this should not be condoned by the Court. Although not determinative, a relevant matter for my consideration is to consider the original development application and it is clear from the Court’s holistic assessment of the original application that the presentation in terms of landscaped area was such that there would be an improvement, in particular to the public domain.

27 While the front turfed area will now not be visible because of the palisade fencing that has been changed at the front and return of the property to provide for a masonry fence, this will diminish, in my assessment, the contribution the terrace has to the streetscape.

28 With respect to the shed being some 4.2 square metres, whilst this is not a large structure nonetheless it represents development by creep. The changed circumstances submitted on behalf of the applicant are that the shed is required for the storage of garden tools et cetera. The development of the site is one that has provided for a much larger dwelling and there is also additional areas that have been approved by the Council that could also be used for similar type of storage. I am not satisfied that, as submitted by the applicant, that the requirement for the storage of garden equipment justifies a further development of this site and a further footprint to be covered by built form.

29 The Court approved a rear extension of the dwelling into the rear yard and having regard to the Court’s assessment previously it allowed for this rear extension of the footprint having regard to the overall contribution the ultimate development would make to, in particular, the public domain and the selling of this heritage item.

30 It could be said the current modification application is small, minor further incremental additions to the dwelling house - that is, hard paved area at the front and the garden shed - however in terms of s 79(1)(e) they are not in the public interest and they do not represent certainty in the planning process.

31 Development applications are assessed holistically and this development application at the time of its original approval by the Court was assessed in such a way. The approval was based on the fact that while there were exceedences allowed the dwelling and its curtilage made a contribution including its heritage significance would continue to contribute to the area.

32 My assessment does not involve a SEPP 1 objection, just as for SEPP 1 objections, however the absence of environmental harm is not the test. The test is in terms of the merits of the application under s 79C. For the applicant Mr Shiels contends that the modifications will provide for useable open space. However in my assessment the turfed area constitutes useable open space and soft landscaping. If the applicants find that the front portion cannot sustain turf because of the limited depth of soil and drainage then there is sufficient height to allow removal of the hard paved area under the two inches of soil to provide a much greater depth of soil for either the grass or more significant plantings. That is not a matter for me in these proceedings. The matter for me is the change from what was approved as soft landscaped to hard paving.

33 For the actual percentages, I have the benefit of Exhibit D, which provides a more detailed way of calculating the landscaped area. Nonetheless at the end of the day the area now proposed to be landscaped is clearly less than that originally approved by the Court and modified by the Council.

34 In the Court’s judgment of 16 June 2005 at paragraph 14 the landscaped area requirement under the LEP for a site under 500 square metres is 50 per cent to be provided as landscaped area. The subject site would require 136 square metres of landscaping.

35 I am also aware that Exhibit D provides for a more precise calculation but irrespective of the minute differences in calculations, at the end of the day the proposal provides for some 20 square metres less than approved by the Court in terms of landscaped area, in particular of soft landscaped area, and as such it does not warrant approval.

36 The Court in its assessment must have regard to the purpose of the planning system. I also acknowledge that s 96 is facultative in that amendments can be facilitated through retrospective s 96 applications. The proper test is not what the incremental impact of the modification would be but rather an assessment of the total development. The modifications of the application do not warrant approval in my assessment because they are excessive and represent an inappropriate use of the provisions of s 96 having regard to a comprehensive assessment of the development.

37 The Court has had regard also to the fact that a much larger dwelling is now on the subject site and in terms of built-upon area and percentage of the site that should be in soft landscaping or landscaping, the size of a dwelling house must also be considered in an assessment and that is also appropriate for an assessment of a modification under s 96. That is there should be a commensurate amount of open space compared to the size of the dwelling.

38 As I stated earlier, whilst not determinative, the public interest would not be served by the granting of approval to the modification in that the granting of consent would not provide for certainty in the planning process furthermore inappropriate development by creep cannot be condoned by the Court. In my overall merits assessment which I must undertake under s 79C, the proposed modifications are without merit and therefore must be refused.

39 Accordingly, on the basis of my assessment above the formal orders of the Court are:

1. The appeal under s 96AA(3) of the Environmental Planning and Assessment Act in respect of the property known as 40 Kirribilli Avenue Kirribilli is dismissed.

2. The application submitted to North Sydney Council to modify the consent for the above property is refused insofar as it relates to the modifications identified in Part 1 paragraph 5 Items 1, 3, and 4 of the modification application dated 16 January 2007.

3. The exhibits are returned.

___________________

J S Murrell
Commissioner of the Court
Cc/ljr