Michael Suttor Architects Pty Limited v North Sydney Council

[2006] NSWLEC 257

Land and Environment Court

of New South Wales

CITATION:	Michael Suttor Architects Pty Limited v North Sydney Council [2006] NSWLEC 257
PARTIES:	APPLICANT Michael Suttor Architects Pty Limited RESPONDENT North Sydney Council
FILE NUMBER(S):	11530 of 2005
CORAM:	Moore C
KEY ISSUES:	Development Application :- Consent orders Impact on neighbouring heritage item .
LEGISLATION CITED:	North Sydney Local Environmental Plan 2001
DATES OF HEARING:	29 March 2006
EX TEMPORE JUDGMENT DATE:	03/29/2006
LEGAL REPRESENTATIVES:	APPLICANT Ms S Hill, solicitor Susan Hill & Associates RESPONDENT Ms R Shepherd, solicitor Malleson Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C

29 March 2006

11530 of 2005 Michael Suttor Architects Pty Limited v North Sydney Council

JUDGMENT

This decision was given as an extemporaneous decision at an on-site hearing. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal will be 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

1 COMMISSIONER: This is an appeal pursuant to s97 of the Environmental Planning And Assessment Act 1979 against the refusal by North Sydney Council (the council) on 17 November 2005 of Development Application 115 of 2005 for a two-storey addition at 1/41 Kareela Road, Cremorne Point (the site). The reasons given by the council for refusal were the impact on the neighbouring property to the north (which is a heritage item of regional significance) and the reduction of the landscaped area on the site.

2 I have had the opportunity of inspecting the site in company with the parties and their advisers and in addition to have heard further informal evidence and received a statement of evidence by Mr Lucas, a heritage expert, on behalf of the neighbours to the north.

3 During the course of the inspection, as part of the discourse which takes place during on-site hearings, a number of matters were raised for consideration by the owners and their advisors.

4 The consequence of this has been that there has been an application to amend the proposal in three respects. These amendments are not apposed by the council. The amendments are:

• to eliminate the proposed stair and pathway along the boundary to the property to the north;
• to replace the proposed hipped slated roof (which would have been consistent with the slated roof of the main portion of the existing building) with a flat copper roof consistent with the of the roof of the present extension to the north of the main portion of the building; and
• to increase the northern setback of the extension by 100 mm from the adjacent property - the increase being from 1.7 m to 1.8 m.

5 It is also appropriate to note that there is non-compliance with the standard in the North Sydney Local Environmental Plan2001 (the LEP) for the amount of landscaped area required for the site. That non-compliance, which is non-compliance with cl 23 of the LEP, is the subject of an objection pursuant to State Environment Policy No. 1 (SEPP 1) drafted and lodged on their behalf by Mr Byrnes, an expert planner advising the owners.

6 That objection concludes that the variation from the required numerical landscaping control is appropriate and that I should consider it unreasonable and unnecessary to apply the standard strictly.

7 It is settled in this Court that, when considering a development which is entirely compliant, standards of acceptability are more permissive than those which are applied to development applications which are non-compliant and which require the sustaining of an objection pursuant to SEPP 1 for their approval.

8 I am satisfied, however, that, subject to a number matters of modification (most of which have been accommodated by the amendments already proposed by the applicant), compliance is unreasonable or unnecessary - that being the tests which I am obliged to apply pursuant to SEPP 1. I am satisfied that there may be an appropriate two-storey addition and that the SEPP 1 objection should be sustained.

9 However, the sustaining of that objection is contingent on that which follows with respect to the objections to the proposal.

10 I turn, first, to the objections that were raised of elements of viewing of the proposed additions (other than from 43 Kareela Road), as they are capable of being dealt with in comparatively short compass.

11 First, with respect of the view from the public domain, I am satisfied that the proposed addition (as is now modified with a flat roof) will lose such a small element of the view through the site towards Mosman Bay as to be a de minimus impact

12 I have so concluded because I am satisfied that, even with the removal of the tree on the property (as proposed by the application and as supported by council’s tree officer for reasons other than reasons associated with the development – namely that the tree is likely to have, as it matures, significant and adverse long-term impact on the sewer line in its vicinity on footings of the houses on each side), there is no significant impact on the view from the public domain.

13 In reaching this conclusion, I have had regard to the impact on this view of the additional vegetation between the site and the Harbour across the Council reserve. There are, on my observation, two eucalypts, a Norfolk Island pine and somewhat in excess of three Coral Trees (depending on how one counts the trunks) between the present tree to be removed and the water. As a consequence, I am satisfied that, even with the tree removed and without the proposed addition on the site, there would still be a significant vegetative interference with the view of the water through from the public domain immediately in front of the site.

14 Further, I am satisfied, having visited the front balcony of 28 Kareela Road, that, particularly with the proposed extension roof now to be a flat roof, the likelihood of any resident of 28 Kareela Road seeing any element of the proposed addition whilst the pines on the site’s northern boundary are in a healthy state is almost negligible - that being a position from any point in the balcony of 28 Kareela Road. Had the proposal not been amended to have a flat roof, any resident of 28 Kareela Road might well have seen part of the hipped slate roof but that would have been against the backdrop of the existing building form.

15 I am satisfied that, on the basis of the views from 28 Kareela Road and from the public domain, there is no reason why I should refuse the application or require further modifications to it.

16 I turn now to the question of the impact on the neighbouring property at 43 Kareela Road.

17 In this regard I had evidence from Mr Lucas and from Mr Oultrom, a heritage adviser on behalf of the applicant.

18 Mr Lucas put the proposition that the proposed extension will not sufficiently respect the heritage value of the existing building and 43 Kareela Road and that there was, in his opinion, a conscious decision by the original designer of the present building on the site to respect the entrance of 43 Kareela Road by having the setback which is presently evidenced when one enters the site.

19 Mr Oultrom, on the other hand, puts the proposition that I should regard the heritage item as being within its boundaries and that even if I did not take that view the diminution of the setback between the proposal on the site and 43 Kareela Road will not impact in any adverse fashion which would render the proposal unacceptable.

20 The applicant’s amendments have proposed, in this regard, two changes.

21 The first is the removal of the footpath down the side and the replacement of it with a soft landscaped area. I am satisfied that that will provide a significant additional buffering to 43 Kareela Road as well as an improvement in the amenity of its residents.

22 I accept that it is appropriate to provide, as a part of landscaping of that area, an informal and not obvious accessway by a number of stepping stones. However, it should be one which is, in the first instance for persons entering the site, barred by the balustrading of the path so that it is obviously not the desired pedestrian access to the front of the dwelling. The design will need to be amended to reflect that and to retain the present steps which are otherwise proposed to be removed.

23 The landscaping plan will need to be amended to reflect a landscaping regime in that area and it would be appropriate that that can be dealt with by way of a conditional requirement that the applicant and the council’s settle a landscaping plan for that area.

24 It is certainly my assumption that the residents at 43 Kareela Road will be consulted by the council before the council consents to such a plan.

25 The second amendment proposed is for an increase of the northern setback of the proposed extension of 100mm.

26 It therefore remains for me to determine whether or not I should require any further increase to the setback between the proposal as amended and the boundary of the properly. This involves a consideration of what benefit might be provided to the neighbouring property by doing so and what disbenefit might be occasioned to the applicant’s proposal if I were to do so.

27 Mr Lucas, at one stage, suggested that an addition which, in effect, continued the line of the northernmost element of the dining room of present dwelling would be appropriate in respecting the setback of the neighbouring property. That is clearly an inappropriate design outcome because any space that would be achieved by that would be so small as to be unusable at either level.

28 Although I am satisfied that a two-storey addition as proposed to be consented to by the council would be appropriate, I am not satisfied that the degree of setback as proposed by the applicant's amendments is appropriate.

29 I invited the applicant to consider a number of alternative locations for the setback ranging between the southern face of the existing retaining wall through to the outer face of present proposal. The applicant now proposes a setback increase of 100 mm. This, in my view, would provide no appreciable benefit to the sense of space or separation between the two dwellings or would add to “the respect” (as put by Mr Lucas as being important) between the two dwellings.

30 I am satisfied that a further setback of at least 300 mm from the present proposed location of the outer wall is necessary to provide an appropriate degree of separation between the properties.

31 I have reach that conclusion because it is necessary for a State Environmental Planning Policy No. 1 objection to be sustained because the development is otherwise non-compliant.

32 The additional setback will not make the development entirely compliant – although that setback, together with the imposition of the additional landscape space, will assist in that regard.

33 As a consequence I am satisfied that the orders of the Court should be that:

1. The appeal is upheld;
2. Development Application 115 of 2005 for ground floor and first floor alterations and additions to the existing dwelling and landscaping works at 1/41 Kereela Road, Cremorne Point, will be determined by the granting of development consent subject to conditions (which remain to be settled between the parties in light of this decision) and also subject to the filing of revised plans settled between the parties reflecting the terms of this decision; and
3. The exhibits other than the Exhibits B, C, E and F are returned.

Tim Moore
Commissioner of the Court