Meehan v North Sydney Council

[2005] NSWLEC 710

Land and Environment Court

of New South Wales

CITATION:

Meehan v North Sydney Council [2005] NSWLEC 710

PARTIES:

APPLICANT
MM Meehan

RESPONDENT
North Sydney Council

FILE NUMBER(S):

10945 of 2004

CORAM:

Murrell C

KEY ISSUES:

Development Application :- Alterations and additions to a heritage dwelling.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
North Sydney Local Environmental Plan

DATES OF HEARING:

26/04/2005, 16/06/2005, 28/07/2005, 17/11/2005 and 25/11/2005

EX TEMPORE JUDGMENT DATE:

11/25/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr J. Bingham, solicitor and
Ms Z. Baker, solicitor
of Deacons

RESPONDENT
Ms G Furness, barrister
Instructed by: Ms E. Clancey
of Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

16 June 2005

10945 of 2004 Meehan v North Sydney Council

JUDGMENT - FINDINGS

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

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act against North Sydney Council’s refusal of a development application for the property known as No. 40 Kirribilli Avenue, Kirribilli, on the corner of Broughton Street.

2 The subject site is 272 sq m with a frontage of approximately 7.7 m. The adjoining property at No. 42 Kirribilli Avenue is a pair within the two defined dwellings. They were built as a pair in approximately the 1870s. The pair of dwellings, terrace houses, is in fact a heritage item under the North Sydney LEP and it is identified as having local significance.

3 The subject site is not within a conservation area, although there was discussion during the proceedings of the fact that perhaps this should be a conservation area, given the large number of heritage items in the vicinity of the subject site. It is noted that the properties at No. 41-45 Pitt Street are heritage items of regional significance and the properties in Jeffrey Street, in particular the block within which the subject site sits, No. 18 through to No. 32 and beyond are also heritage items of regional significance.

4 The subject site is opposite Bradfield Park and is visible from the Sydney Harbour Bridge. The subject property enjoys expansive and unparalleled views over Sydney Harbour through to the Opera House.

5 The applicant seeks to extend the existing dwelling by the addition of space at the ground floor level and also a loft within the roof area and the third component is the third bedroom, as shown on the subject plans, at the first floor level at the rear which his proposed, in what is known as a service yard or breezeway of the pair of dwellings.

6 It is noted that the adjoining dwelling, the other one of the pair at No. 42, has a glass conservatory built within the area which adjoins the proposed third bedroom. The glass conservatory has a very steeply pitched roof running to the boundary, away from the boundary to the east.

7 It was described as others during the proceedings, in particular the heritage experts. Mr Logan described it as an ungainly glass conservatory. Mr Davies described it as something that was, we have to recognise the conservatory is there, it is not elegant or well resolved and in many respects it does impact on the heritage rear intactness of the two dwellings. It is not in terms of heritage as to why I consider the proposed third bedroom should be deleted, but more in terms of an amenity on the existing dwelling at No. 42.

8 The subject site is zoned under the North Sydney Local Environmental Plan and the North Sydney LEP of 2001 has a number of controls, which I must have regard to. The general aims of the plan include development that is appropriate in its context and enhances the amenity of the North Sydney community and environment. The specific aims in:

3A(i) promote the character of the neighbourhood and development, which is compatible with neighbouring development in terms of bulk, scale and appearance.
B(i) protect and enhance the residential use and amenity of existing residential neighbourhoods.

9 In relation to environmental heritage the aim is to identify and encourage conservation of the heritage of North Sydney and ensure that development does not adversely affect the significance of the heritage.

10 Clause 14 provides for that when considering a development application the consent authority must take into account the aims and objectives of the plan and consent shall not be granted if, in the opinion of the consent authority, it is inconsistent with the specific aims and objectives of the zone. The subject zone is that if residential:

B. The particular objectives of this zone are to maintain lower scale mixed residential neighbourhoods; and
C To assist in the conservation of heritage.

11 They are matters that I must have regard to in terms of my consideration of the development application before me.

12 The more particular controls for this particular development application is cl 18, which relates to the building height plane. The specific objectives of the building height plane controls are (a) control the bulk and scale of buildings, (b) provide separation between buildings and (c) preserve the amenity of existing dwellings and provide amenity to new dwellings in terms of shadowing, privacy, views, ventilation.

13 The building height plane is to be measured as commencing at 1.8 metres above the existing ground floor, projected at all points from each of the boundaries of the subject site. Sub cl 5 states that the building height performance criteria consent shall not be granted pursuant to SEPP 1 for the erection of a building any part exceeds a building height plane set by this clause if the building would materially:

(a) overshadow any existing or new property,
(b) reduce the level of privacy to any existing or new property, obstruct views and obstruct daylight or ventilation.

14 The landscaped area requirement under the LEP is that for a site under 500 sq m, 50% is to be provided as landscaped area. The subject site would require under the LEP 136 sq m of landscaping. It currently provides 91 sq m. The subject development application reduces this to 87 sq m.

15 The heritage provisions are also most important that I must have regard to in terms of this development application, being a heritage item and the heritage conservation objectives of relevance are:

(c) ensure the conservation of heritage items and heritage conservation areas and
(d) ensure development does not adversely affect the heritage significance of heritage items.

16 In terms of heritage items, there are a number of objectives, that includes to ensure heritage items are conserved and maintained.

17 The consent authority must also have regard to a number of matters in determining a development application for a heritage item, which are set out in cl 48 of the LEP. The consent authority must also have regard to the fact that the subject site is within the vicinity of many other heritage items, as required by cl 50 and as I stated the subject properties have local heritage significance under the North Sydney LEP schedule 3.

18 There are other controls, which I must state, although they were not an issue in the proceedings. That is SREP 23, which is the harbour foreshore and SEPP 56, Sydney Harbour State Environmental Planning Policy. It was common ground between the parties that the proposed development would not be inconsistent with the provisions of those instruments.

19 The Court heard evidence from many experts in this matter. In terms of heritage, Mr David Logan was the court appointed expert. Mr Stephen Davies provided evidence on behalf of neighbouring properties. Mr Robert Staas provided evidence for or on behalf of the applicant and council’s heritage officer, who by qualification is a landscape architect with some years experience in heritage matters, Ms Varley also provided evidence on behalf of the council. In terms of planning evidence, there was evidence given by Mr Mossemenear, council’s senior planner and Mr Gary Shields on behalf of the applicant provided evidence.

20 There was joint conferencing and the joint conferencing resulted in the heritage experts agreeing that the attic roof or the loft area was not an issue and that the resolution of the space in the loft was one that the heritage experts did not take issue with and found acceptable in the circumstances of the case. Ms Varley held an opposite view.

21 The experts with respect to the internal alterations, that is alterations to ceiling heights, the experts agreed that the main bedroom and secondary bedroom on the upper level are recent replacements in plasterboard and that the proposal would not impact on the heritage significance of the item. Ms Varley maintained her position that she considered that the ceiling hierarchy should be maintained in the proposed development.

22 In terms of the ceiling hierarchy, in terms of the alterations, I agree with the heritage experts who provided their views on site and in court, that the internal alterations would not impact or significantly impact on the proposed development to warrant its refusal.

23 Similarly with respect to the attic roof. There has been attention to the attic roof and the resolution of the design detail is such that it will be visible from certain locations but very limited locations and overall it does not increase the roof height. The provision of the 8.5 m height restriction in the LEP is already exceeded by some 2 m by the existing terraces on the subject site and I am satisfied that the additional accommodation in the dormer or loft area is appropriate in this particular development application.

24 With respect to the issue of landscaping, it was agreed by the four experts that the proposed soft landscaping and fencing will be positive and enhance the appearance of the terrace, in particular when viewed from the harbourside the palisade fencing is to be reintroduced which will add to the amenity and heritage of the subject dwelling. The reduced area of some 5 sq m in terms of the ground floor extension in the circumstances I consider it appropriate and that the visual contribution of the landscaping and the higher visibility with palisade fencing of the terrace will be an enhancement of the subject dwelling.

25 I will say for the record, that in terms of the SEPP 1 objection to the landscaped area, I have looked at the underlying objectives in terms of the control or the standard and I am satisfied that the objection as submitted by Mr Gary Shields is well founded and that the SEPP 1 in this regard should be upheld.

26 The critical issue in the Court’s assessment was the one with respect to the rear first floor extension of what is called the third bedroom on the subject plan or the new bedroom No. 3 on the subject plan, exhibit A. I have given a great deal of consideration to this issue. There were a number of resident objectors who objected to the extension at this level and also Ms Varley objects to the extension in terms of the heritage impact on the pair of dwellings. I accept the views of Mr Logan, Mr Davies and Mr Staas that in heritage terms the third bedroom is not a matter that would warrant refusal of the application and I say that on the basis that the existing conservatory at No. 42 certainly has changed the rear form of the pair of terraces. Therefore, it would be difficult to refuse the upper floor extension on the basis of a change to the rear form of the terrace.

27 It is noted that there are many existing heritage buildings, as I stated, within the vicinity and the Court had the opportunity of viewing the subject site from these premises. There have been a number of alterations and additions to many of the heritage items and in particular No. 41 where there are extensive alterations to the original terrace form. And I am satisfied that viewing an extension from these other properties is not something that would warrant refusal of the application.

28 Also from the view, it could be appreciated that the extension of the third bedroom is not something that would be highly visible. It would in a location along the park on the opposite side of Broughton Street be partially visible but once again this is not something that would warrant refusal of the application.

29 At the end of the day it was the impact on No. 42 and whilst I appreciate that the impact is also within an area that, by today’s standards of assessment in terms of heritage, that may not be approved. That is not the issue. The issue that I must look at in terms of the SEPP 1 objection is the impact on the amenity of that property.

30 As a SEPP 1 matter, the questions must be answered as were set out in Winton by Lloyd J and I must have regard to the standards of the building height plane. The building height plane has a number of specific objectives and

(a) is to control the bulk and scale of buildings and provide separation between buildings.

31 During the proceedings the experts were asked to draw a line on the exhibit A to show the building height plane and I appreciate that with terrace dwellings that it is often difficult to provide extensions that conform to the BHP as set out in the North Sydney LEP. That is not the question. The question is what would be the impacts of that development, the third bedroom on No. 42, and in my assessment the SEPP 1 objection to vary the building height plane in the circumstances of this case is not well founded and I am not satisfied that the objectives of that standard would be satisfied by the third floor bedroom.

32 In saying that, I do not believe that the issue of additional overshadowing, in particular at the equinox, would warrant refusal or that that is a material affectation. There is still more than sufficient sunlight that would be received. Similarly, I agree with Mr Mossemenear that in terms of ventilation and daylight, the proposed extension would not be one that is adverse and in terms of privacy and overlooking, clearly by the positioning of the windows, there is no concern with privacy and overlooking in any urban situation such as this with a fine fabric, a certain extent of mutual overlooking must be accepted. There are no windows proposed in the eastern wall of bedroom 3 that would create impacts in that regard.

33 At the end of the day the objective of the building height plane is to control the bulk and scale of buildings and the separation between buildings. A wall erected on the boundary, in my assessment, is not one that is neighbourly or is not one that would satisfy the objectives of the building height plane and the bulk of an additional floor right on the boundary is one that should not be approved.

34 With respect to those people that gave evidence to the Court, the owners of No. 42, Mr and Mrs Skarratt gave evidence to the Court. The owners of No. 41 Pitt Street gave evidence to the Court and there were a number of letters of objection which the Court also had regard to in council’s bundle. The owner of No. No. 30 Jeffrey Street, Ms Marsner also gave evidence to the Court as well and there were concerns about the heritage significance. As I said the reason for why bedroom 3 should be deleted is not in terms of the heritage because it is clear from the site inspection that the rear of these subject terraces has been altered by the conservatory at No. 42.

35 If it was proposed to be an amendment to the rear of the terraces as a pair and that the alteration be the same for both terraces, that is also a preferable course of action in terms of any addition being seen as clearly something that is new to the original terrace. But in the circumstances of this case it is difficult because on the one hand I have what is not considered by all the experts to be a sympathetic conservatory next door but on the other hand on balancing the impact on No. 42 that the wall rising at the boundary would have on the living amenity of that dwelling on balance, I consider the impacts of the third bedroom at the first floor to be unreasonable in these circumstances.

36 As I stated, it is a matter for the applicant as to how the plan is amended. Whether in fact the bathroom No. 1 remains as a bedroom, whether in fact there is a new bedroom or another bedroom on the lower level, given that the whole of the lower level is given over to living area and two bathrooms at the lower level is a matter for the applicant but it is to be contained within the envelope as I see it, rather than with the addition of a third bedroom at the first floor on the boundary.

37 I will be guided by the parties as to how they would like to respond to my preliminary findings. I thought it may be appropriate to give the applicant and the council the opportunity of seeing an amended plan and in a month to be able to then come back to the Court but I will allow some discussion as to how you wish to proceed. The conditions would also need to be amended and all of those consequential matters can be taken care of during any adjournment as such.

38 It will be a matter for the council as to whether it considers the amended plans when submitted would require re-notification or whether it just requires re-notification to the neighbour.

39 The parties are directed to e-Court 23 June 2006 for a timetable and further hearing date.

_____________
J S Murrell
Commissioner of the Court
Ljr/rjs -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

25 November 2005

10945 of 2004 M M Meehan v North Sydney Council

JUDGMENT

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

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act against the refusal of North Sydney Council for a development application for alterations and additions to a heritage property known as No. 40 Kirribilli Avenue, Kirribilli.

2 By way of background I handed down my findings on 16 June 2005 for the development application that originally came before the Court. On that occasion I determined the proposal would be inappropriate in terms on the impacts of the amenity on the adjoining property at No. 42 that is to extend the property at No. 40 by way a first floor addition on the boundary next to what is a conservatory for the property at No. 42. The Court gave preliminary findings in this matter and they were also recorded. I do have a transcript of those findings and they also will be provided when this judgment is made available publicly on the internet.

3 I will just briefly summarise what my findings were bearing in mind that the parties have the benefit of my previous findings. The Court assessed the application that was originally submitted in terms of the amenity impacts on No. 42. The Court held the view that it was not because of the heritage impact on the building to why the first floor addition was considered inappropriate but it was for the reason that the amenity on No. 42 would be significantly impacted by the addition of the first floor at the rear. The Court in its findings said that it was available to the applicant to then consider how the floor space within the dwelling would be allocated and in that regard the Court made the requirement that it must be contained within the envelope.

4 On the occasion of my determination concerning the deletion of the first floor addition I also made findings with respect to the roof or the loft extension and I agreed with the heritage experts that it was satisfactory together with the extension at the ground floor and the application was also assessed in terms of the SEPP 1 objection.

5 Following an adjournment the applicant then submitted amended plans to the Court and to the council and they were duly notified to the adjoining neighbours and there were further amendments to that plan. The plan that was the subject of the notification was for excavation to provide for an additional level in the family room portion and a reconfiguration of space and ceiling heights. Also the loft now provides for a third bedroom and a bathroom and the property also now provides within the amended plan for a family room, which is partially excavated into the ground.

6 The heritage experts agreed following further amendments that the proposed reworking of the floor levels and the additional space was satisfactory on heritage grounds and the Court had the benefit of the Court appointed expert’s views Mr D. Logan in the matter. I also note that Mr Davies who was engaged by the adjoining owners also agreed that on heritage grounds the proposed development as shown in the amended plans is satisfactory.

7 At the end of the day the issue then remains as to whether the risk of the excavation is one that the Court should approve. The Court met last Thursday and I advised at that point in time I would hand down a decision on the merits of the application on the receipt of the conditions. The conditions have now been received by the Court and I have carefully read these conditions which are the result of consultation and conferencing between the experts both for the council and for the applicant.

8 In the DCP there is a provision concerning excavation that it be setback a distance of 1 m from a boundary. The proposal now before the Court is for the excavation to be set back in excess of 600 mm from the party wall, that is approximately 675 mm from the boundary. The excavation is to approximately a depth of 800 mm or less than 1 m. The length of the excavation is 5.3 m long to accommodate the additional space and the excavation is in the location where there is a single storey element on the boundary of the adjoining property at No. 42.

9 The Court has the benefit of not only the written advice of the engineering experts but also concurrent evidence from the experts. On behalf of the respondent Mr Davies provided evidence to the Court. He considers that the risk of the excavation can be classified as medium risk on a scale of very low to very high, being 5 categories, and that this can be described as a tolerable risk which he said is higher than an acceptable risk. He also advises the Court that medium/moderate levels of risk are what society tolerates in an engineering sense given the proviso of measures to manage the risk. Ms McGregor for the applicant advises the Court that in her opinion the excavation is low risk and it requires controls to be carefully followed and the design support measures are matters that come under great scrutiny and supervision furthermore she advised that the risk was only for the duration of the construction as such. Mr Birzulius, also for the applicant,, considers that the excavation is low risk and that the worse case scenario in his opinion would be the cracking of the walls which can be described as cosmetic.

10 The Court has given a great deal of consideration to the experts’ views and the Court is assisted by the joint conferencing and the reports.

11 It was submitted on behalf of the respondent that the risk is one that in terms of the reasonableness of the proposal should not be accepted by the Court. On the other hand the applicant submitted that the risk was one that was not unacceptably high and it would not warrant refusal of the development application.

12 As I stated I advised the parties on adjourning that I would await the conditions because clearly the conditions, in a matter such as this, are extremely important. The relevant conditions that have been provided and agreed to between the applicant and the council are at C15.

“The structural design for the walls and footings shall be accompanied by a detailed method statement prepared by a civil or structural engineer to ensure an appropriate level of engineering control over the excavation underpinning and drainage works according to the final design.
The method statement must include an investigation into the soil conditions, footing levels and footing type, bedrock levels and groundwater conditions prior to the commencement of works. The results of the investigation must be taken into account in the engineering design and specification of the proposed works particularly the proposed excavation.
The engineering design and specification for the proposed work shall be reviewed and approved by a suitably experienced geotechnical engineer on behalf of the applicant prior to commencement of works. Details of the engineering design specification, method statement and approval by the geotechnical engineer shall be submitted with the application for a construction certificate.
The specific requirements detailed below are to be included in the method statement and followed to achieve the above minimum requirements.
The purpose of the conditions is to minimise the risk to the integrity of the foundations and building structure on the adjoining property at No. 42 Kirribilli Avenue.”

13 C16.1 through to C16.9 provides for ‘specific excavation and drainage requirements’ and there are extensive conditions provided that require inspections of the excavations during construction to ensure adherence to the engineering details. The inspections are to be carried out at each stage of the underpinning sequence. There is also a footing condition with respect to if the ground conditions if it is found to differ from the design assumptions the work shall cease and instructions for temporary stabilisation of the excavation and the existing footings must be obtained from the structural engineer.

14 Condition, G1, must be complied with prior to the issue of an occupation certificate and it states:

all precautions must be taken to prevent any damage likely to be sustained to adjoining properties. Adjoining owner property rights and the need for owner’s permission must be observed at all times including the entering onto land for the purpose of undertaking works where damage occurs to adjoining property or necessary repair or suitable agreement for necessary repairs are to be undertaken by the applicant in consultation with and with the consent of the affected property owner prior to the issue of an occupation certificate.

15 I was also advised that the standard condition of a pre and post dilapidation report of the adjoining property is a standard requirement of the council.

16 The Court heard evidence from the owner of the adjoining property, Mrs Skerrett and she and her husband have lived there for some 36 years. She did express grave concern about the excavation and cited the Lane Cove tunnel. I do appreciate concerns of adjoining property owners where there is excavation, especially where heritage buildings are concerned. I must also have regard to the extent of the excavation and the provisions to ensure the stability and long term impacts or long term stabilisation to ensure that properties are not damaged. Whilst there is concern about excavation I must put it into its proper context in terms of the depth of this excavation being less than 1 m, and 600 mm from the party wall for a length of 5.3 m long. Clearly this is not comparable to large excavation works but at the same time I do understand on a domestic scale why neighbours may have concerns.

17 I have on balance assessed the impacts of the excavation and in my assessment with the benefit of the experts I have concluded that the impacts of the excavation, having regard to the conditions agreed to between the experts, that it is not unreasonable and will not impact on the amenity of No. 42 as would the first floor addition (not that one compares the two) but in terms of long term amenity I am satisfied that the excavation and the development application as now amended is one that warrants approval and that the risk is not unacceptably high and the likelihood of damage in terms of the experts’ advice is one that I am satisfied will not create long term impacts for the property at No. 42.

18 I have had regard to the additional space that would be provided and whether the risk is one that is reasonable in terms of the additional space requirements. I am satisfied that on balance that the proposal as now submitted in the amended plan is one that is satisfactory and it is one that will not impact on the heritage significance of the building or the buildings. As I noted in my previous judgment this is a heritage item and there are a number. of heritage items in the vicinity. I have the benefit of the heritage experts that they consider the development as now proposed in the amended plan is satisfactory pursuant to the heritage provisions of the local environmental plan.

19 The issue at the end of the day for the Court was one that was narrowed down to the risk and as I stated with the conditions that have been forwarded to the Court I am satisfied that there are measures to ensure that the excavation will be carried out in a way that will minimise the risk of excavation and that the procedure and methodology for construction is carefully identified in the conditions that requires extensive investigation and supervision. And I am satisfied that the conditions are ones that will reduce the likelihood or the likely impact of the proposed works on the adjoining property at No. 42. As Mr Davies said even if I have regard to the medium risk as he identified this is one that society does tolerate and I am satisfied that the application on balance is reasonable.

20 The fact that the excavation is less than a distance of 1 m from the boundary being 600 mm from the boundary I am also satisfied by the experts’ advice that this would not warrant refusal of the application, especially having regard to the limited depth and extent of the excavation.

21 Therefore on the basis of my findings in terms of the amended plans that have been submitted to the Court, the formal orders of the Court are:

1. The appeal in respect of the property known as No. 40 Kirribilli Avenue, Kirribilli, is upheld on the basis of the amended plan.
2. The development application submitted to North Sydney Council and as amended is determined by the granting of consent subject to the conditions contained in Annexure A and Annexure A contains the conditions that I referred to in terms of the excavation and necessary studies.
3. Costs are reserved and the exhibits will be retained to allow the costs application to be further considered.

___________________

J S Murrell
Commissioner of the Court
Ljr/rjs