Nuts 'n Berries v North Sydney Council

[2006] NSWLEC 516

Land and Environment Court

of New South Wales

CITATION:	Nuts 'n Berries v North Sydney Council [2006] NSWLEC 516
PARTIES:	Applicant: Nuts 'n Berries Pty Ltd & G Falcomata Pty Ltd Respondent: North Sydney Council
FILE NUMBER(S):	10204 of 2006
CORAM:	Roseth SC
KEY ISSUES:	Development Application :- compliance with building height plane, overshadowing and podium setback
CASES CITED:	Karavellas v Sutherland Shire Council [2004] NSWLEC 251
DATES OF HEARING:	14/08/2006 and 15/08/2006
DATE OF JUDGMENT:	08/22/2006
LEGAL REPRESENTATIVES:	Applicant: Mr J Bingham, instructed by Ms A Segel, solicitors of Deacons Respondent: Ms G Furness, barrister instructed Ms R Mirosevich of Mallesons Stephen Jaques

JUDGMENT:

- 13 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

22 August 2006

10204 of 2006 Nuts ‘n Berries Pty Ltd and G Falcomata Pty Ltd v North Sydney Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal by North Sydney Council (the council) of a development application to demolish the existing buildings and erect a 14-storey commercial/residential building on lots 5, 6 and 7 DP 237104, known as 12-16 Berry Street, North Sydney.

The site

2 The site is on the northern side of Berry Street, west of Pacific Highway. Its width is 22m, its depth is 43m and its area is 952m2. Two four-storey buildings now occupy the site, with vehicular access from Doohat Lane.

3 The site’s northern boundary is also a zone boundary. On the other side are detached houses facing Doohat Avenue. At the corner of Doohat Avenue and Doohat Lane is a heritage-listed house, No 1 Doohat Avenue. The properties in Doohat Avenue are zoned residential with a 12m height limit.

4 To the east of the site is a four-storey commercial building, No 18 Berry Street, which is attached to the existing building on the site along its entire length. Further to the east and on the other side of the Highway is the business centre of North Sydney with its mixture of medium and high-rise buildings.

5 To the west of the site is a three-storey commercial building at 8-10 Berry Street. To the west of that site is a residential area with varying densities and heights up to four storeys. To the south, on the other side of Berry Street is an eleven-storey building comprising a four-storey commercial base with seven residential floors above. To the west, still on the south side of Berry Street, is 10/17 Berry Street, a three-storey apartment building with living rooms and balconies facing to the north.

The proposal and its history

6 The applicant proposes to demolish the existing buildings on the site and to erect commercial residential building consisting of a four-storey commercial base with a ten-storey residential tower containing 24 dwellings above, and basement parking for 34 vehicles.

7 The applicant lodged the development application in March 2005. Following notification, the council received 23 objections. In July 2005 the council considered and accepted the recommendation of its planning staff to refuse the application. The applicant lodged the appeal in March 2006.

Relevant planning controls

8 Local Environmental Plan 2001 (LEP 2001) zones the site Mixed Use. It also establishes the composite shadow for the North Sydney Centre, which is the amalgamation of the shadows generated by existing development during 9am and 3pm at mid-winter. Development Control Plan 2002 (the DCP) applies, including the Area Character Statement for the Central Business District. State Environmental Planning Policy 65 – Design Quality of Residential Flat Development (SEPP 65) and its ancillary Residential Flat Design Code (RFDC) apply. The council has not raised any issue in relation to SEPP 65. State Environmental Planning Policy 1 (SEPP 1) allows applicants to object to development standards.

9 The council has drafted an amendment to LEP 2001, which has not yet received a Certificate under s65 of the Environmental Planning and Assessment Act 1979, and hence cannot be taken into account. It has also drafted an amendment to the DCP that was on the agenda for discussion by the council on the night of the first day of the hearing. In my opinion, fairness to the applicant requires that that DCP should also be disregarded because of its timing.

The issues

10 The council’s latest Statement of Issues (in response to the applicant’s latest version of the proposal) contains six issues, of which it pressed three, though the three issues can be expressed as two major concerns.

11 The first concern is that the height and bulk of the proposal is excessive. The proposal does not comply with the controls on bulk in LEP 2001 and DCP 2002. The controls at issue are the

· Building Height Plane (BHP) in cl 30 of LEP 2001,

· clause 28D(2)(d) of LEP 2001, which relates to the increase in overshadowing that would reduce the amenity of any dwelling that is outside the North Sydney Centre and falls within the composite shadow, and

· the requirement in the DCP for a 5m setback at podium level.

12 The second concern is that the site has not been amalgamated with 8-10 Berry Street, leaving that property too small for redevelopment. Mr C Chance, agent and manager for 18 Berry Street, raised the question of amalgamation with his property; however, this was not an issue that the council embraced.

The objectors’ concerns

13 The Court heard several objectors on the site. Ms Bassett, who manages a company located at 150 Pacific Highway and has vehicular access from Doohat Lane, said that she was concerned about turning out of her driveway. Mr R Lorge, who is financial officer for Attache, a business located at 18 Berry Street, said that the lane was not adequate for the additional traffic. However, the Court-appointed expert on traffic, Mr G Pindar, told the Court that the new proposal would not increase the existing traffic generation of the site.

14 Mr Soon Lin, who owns the heritage-listed house at 1 Doohat Avenue, was concerned about the proposal’s large scale and traffic. Ms K Berry, who lives at 1A Doohat Avenue, Mr J Vitalis, who lives at 3 Doohat Avenue, and Ms I Crinnins, who lives at 5 Doohat Avenue, were all concerned about the size of the proposal that would loom over their rear yard. Ms P Kane, who at 17 Doohat Avenue, is more removed from the site, pointed out that the proposal should be a transmission between the commercial and the residential scale.

The building Height Plane (BHP)

15 Clause 30 of LEP 2001 refers to Building Height Planes.

(1) BHP objectives.
The specific objectives of the BHP controls in the mixed-use zone are to:

(2) BHP controls.
A building must not be erected in the mixed-use zone, on land that adjoins or is adjacent to land within a residential or open space zone, if any part of the building will exceed a BHP:

a) commencing 1.8 metres above existing ground level, projected at all points from each of the boundaries of the site which adjoin land within the residential A1, A2, B, D or F zone or open space zone, or
b) commencing 1.8 metres above existing ground level, projected from the centre of any road which separates the land from land within the residential A1, A2, B, D or F zone or open space zone, or
c) commencing 3.5 metres above existing ground level, projected at all points from each of the boundaries of the site which adjoin land within the residential C zone, or
d) commencing 3.5 metres above existing ground level, projected from the centre of any road, which separates the land from land within the residential C zone.

16 Therefore the relevant Building Height Plane for this site is a line projected at 45o 3.5m above the northern boundary (ie the boundary adjoining the residential zone). The proposal’s depth varies, with a depth of 29m at the western end and a depth of 12m at the east. The thin part of the building more or less complies with the BHP, while the fat part at the west grossly breaches it. The thin part occupies about 5m of the site’s width, while the fat part occupies about 17m, so the non-complying part is in excess of the complying part. (The drawings lack dimensions and are inaccurately drawn, so it is hard to obtain a true picture of the extent of the breach. For example, on the plans the balconies to the 03 apartment living rooms scale 3.5m wide, while on Section A-A they scale as 2.5m wide. If the plans are correct, the breach is greater than the Section A-A indicates.)

17 The applicant submitted an Objection under SEPP 1 to the Building Height Plane. The council’s planning expert, Mr G Mossemenear, did not think that the Objection was well founded, while the applicant’s expert, Mr M Harrison, an architect, planner and urban designer supported the Objection. While they agreed that the Building Height Plane was a development standard, they were at issue regarding whether, despite non-compliance, the proposal achieved the BHP objectives.

18 Clause 30(1)(a) and (b) above contain the objectives of the Building Height Plane. In Mr Mossemenear’s opinion, the proposal does not achieve compatibility with the residential development to the north, given that it is 14-storeys high, while the existing residential is two-storey high and the height limit permits four storeys for any future redevelopment. With a lesser height, he would look more favourably on a breach of the Building Height Plane. As it is, the change in scale is too abrupt. While he agreed that there is no impact from overshadowing and views, he thought that there would nevertheless be an impact from the closeness of such a tall building.

19 Mr Harrison supported the Objection. It appears from his written evidence that he based his opinion on a comparison between the proposal and an alternative proposal that was built exactly to the shape of the Building Height Plane (a triangle), despite the fact that it would not be practical to build a building to that shape. In my opinion, this indicates a misunderstanding of the Building Height Plane. The Building Height Plane is not intended to indicate the shape of a building; it is an envelope within which a proposed building should fit. Any comparisons between a theoretical structure in the shape of the Building Height Plane and the proposal are unsound.

20 I accept Mr Mossemenear’s evidence that the proposal does not meet the Building Height Plane’s objective in cl 30(1)(a). A 14-storey building built 14m from the common boundary with the residential zone is incompatible with the existing two-storey and future four-storey scale in that zone.

21 The SEPP 1 Objection considers the question whether strict compliance with the development standard is unreasonable or unnecessary. It contains this sentence:

Strict compliance with this development standard would result in the construction of a triangular building as illustrated in Figure 1.

22 This suggests that, like Mr Harrison, the author of the Objection also thought that the Building Height Plane is intended to be the shape of an actual building rather than an envelope into which an actual building is to fit. My comments in paragraph 20 above apply. The Objection goes on to say that

The proposal does not result in any material impacts in terms of privacy, views, solar access, light and ventilation as a result of the breach.

23 I note that the sentence conveniently leaves out the words building separation, which are present in cl 30(1)(b). I do not accept that erecting a 14-storey building 14m from the rear fence of a house has no material impacts. In my opinion, the Objection is not well founded and must therefore fail.

Clause 28D

24 Because of the importance of cl 28D in these proceedings, I quote it in full.

(1) Building heights and massing objectives
The specific objectives of this clause are as follows:
(a) to achieve a transition of building heights generally from 100 Miller Street (Norhtpoint) and 79-81 Berry Street (being the location of the tallest buildings) stepping down towards the boundaries of the North Sydney Centre.
(b) to promote a height and massing that has no adverse impact on land in the public open space zone or land identified as a special area on Sheet 5 of the map marked “North Sydney Local Environmental Plan 2001 (amendment no 9) – North Sydney Centre” or on heritage items,
(c) to minimise overshadowing or land in the residential and public open space zones or identified as a special area on Sheet 5 of the map marked “North Sydney Local Environmental Plan 2001 (amendment no 9) – North Sydney Centre”,
(d) to protect the privacy of residents within and around the North Sydney Centre,
(e) to promote scale and massing that provides for pedestrian comfort, in terms of weather protection, solar access and visual dominance,
(f) to encourage consolidation of sites for provision of high grade commercial space and provision of public benefits.

Consent must not be granted to the erection of a building within the North Sydney Centre, unless:
(a) the height of the building will not exceed RL 195 AHD, and
(b) there is no net increase in overshadowing of any land between the hours of 9am and 3pm, 21 June outside the composite shadow area, as shown on the map marked "North Sydney Local Environmental Plan 2001 (Amendment No 9)- North Sydney Centre" (except land that is in the road or Railways Zone), and
(c) there is no net increase in overshadowing, between lOam and 2pm, at any time of the year, of any land that is within the North Sydney Centre and is within the public open space zone or within a special area as shown on Sheet 5 of the map marked "North Sydney Local Environmental Plan 2001 (Amendment No 9)- North Sydney Centre", and

(3) State Environmental Planning Policy No l-Development Standards does not apply to a requirement made by subclause (2) (a), (b) or (c) (including a requirement varied under subclause (4)).

(4) Minor variation of overshadowing controls
The consent authority may make a determination to vary, to a minor extent only, the operation of subclasses (2) (b) or (c), or both, in respect of a particular development application, but only if:
(a) it is satisfied that the variation is justified due to the merits of the development application and the public benefit to be gained, and
(b) it is satisfied that any increase in overshadowing will not reduce the amenity of any land, and
(c) in relation to a variation of the operation of sub clause (2)(b), the variation will result in not more than 2 hours net increase in overshadowing of land referred to in that paragraph between the hours of 9am and 3pm, 21 June, and
(d) in relation to variation of the operation of subclause (2)(c), the variation will result in not more than 15 minutes net increase in overshadowing of land referred to in that paragraph between the hours of 10am and 12 noon, and no net increase between the hours of 12 noon and 2pm, on any day.
(5) Building design and public benefits
When determining whether or not to grant consent to a development application in respect of land within the North Sydney Centre, the consent authority must consider:
(a) the impact of the proposed development in terms of scale, form and massing within the context of the locality and landform, the natural environment and neighbouring development and in particular lower scale development adjoining the North Sydney Centre; and
(b) whether the proposed development provides public benefit such as open space, through-site linkages, community facilities and the like; and
(c) whether the proposed development preserves important view lines and vistas; and
(d) whether the proposed development enhances the streetscape in terms of scale, materials and external treatments, and provides variety and interest.

25 There is no question that the proposal complies with cl 28D(2)(a), (b) and (c). The dispute was in relation to cl 28D(2)(d). It was common ground that 7-17 Berry Street is an apartment building outside the North Sydney Centre that falls within the composite shadow. Its living rooms and balconies face north and receive full sunlight between 9am and 3pm in mid-winter. The impact of the development would be to overshadow three apartments from 9am until 10.15am and five apartments from 9am until 9.30. The question for the Court is to determine whether these circumstances constitute a breach of cl28d(2)(D), and, if yes, whether a variation of the standard is justified by an Objection under SEPP 1.

26 The applicant submitted a report by Dr S King. Dr King argued that the term no increase in overshadowing that would reduce the amenity of any dwelling should be considered as no material increase in overshadowing that would reduce the amenity of any dwelling, or possibly no increase in overshadowing that would materially reduce the amenity of any dwelling. (These were not his words, but rather the content of his argument.) Mr Mossemenear agreed with this interpretation, so I have no reason not to accept it. However, while Dr King thought that the loss of 75 minutes of sunlight during the morning at mid-winter was not material, Mr Mossemenear considered that it was. In describing what he thought was an appropriate height for the proposal (ie eight-storeys), Mr Mossemenear said that the shadow effect would be reduced to half-an-hour; I therefore assume that in his opinion that would be an impact that does not materially reduce the amenity of a dwelling. (However, the proposition that an eight-storey building would produce a shadow only until 9.30am at mid-winter was not tested during the hearing.)

27 In order to answer the question whether the loss of winter sunlight until 10.15am would constitute a material loss of amenity, I put myself in the place of a resident who, on weekends at least, eats breakfast in the sunlight at 9am. If that person had to wait until 10.15am to be able to eat breakfast in sunlight (or alternatively had to eat breakfast without sunlight), he or she is likely to perceive it as a major loss of amenity. It seems to me that half an hour would be the maximum delay that a person is likely to accept without major annoyance. I am aware that the time limit of half-an-hour is arbitrary and would depend on the nature of the resident, but it is not possible to avoid arbitrariness in this kind of reasoning.

28 I therefore conclude that the proposal breaches cl 28D(2)(d) and it is necessary to assess the applicant’s Objection to it under SEPP 1. The Objection states that cl 28D(2)(d) is a development standard. This is also the view expressed by Talbot J in Castle Constructions Pty Ltd v North Sydney Council [2006] NSWLEC 468, ie

The better view is that the subclause (28D(2)(d)) contains a development standard being a provision by or under which a requirement is specified in respect of an aspect of development including the shape of any building and in particular its location, siting, bulk, scale, shape, height or design, all of which are controlled in some respect by the measure of an increase in overshadowing.

29 The Objection offers the following justification for varying the development standard:

1. The proposal has been lowered in height form an earlier version.
2. The proposal fits with the stepping down requirement from Northpoint.
3. The proposal fits into the long north-south section in the DCP Character Statement.
4. The proposal steps down the commercial levels towards the north boundary.
5. The proposal minimises the overshadowing of 7-17 Berry Street.
6. The overshadowing is the same as that caused by a proposal that complies with the Building Height Plane.
7. The variation sought is consistent with the council’s requirements for solar access under DCP 2002.
8. The variation sought is consistent with the planning principle established in Parsonage v Ku-ring-gai Council [2004] NSWLEC347.

9. The variation sought is consistent with the “rule of thumb” of the Residential Flat Design Code.

30 Before I turn to the above justification, I make the point that cl 28(2)(d) deals not with the level of amenity, but with the change to the level of existing amenity. The wording does not suggest that one should accept a reduction in amenity because a dwelling now enjoys long periods of sunlight. Rather, it suggests that a reduction of amenity should be avoided whether the existing amenity is high or low.

31 The first justification is irrelevant: one must consider the current proposal, not what it was in a previous version. The second justification would apply to a lower building. The same comment can be made about the third justification. The fourth justification is irrelevant, as the residents of 7-17 Berry Street, who would suffer the overshadowing, do not benefit from setbacks to the north. The fifth justification is incorrect, as the proposal does not minimise overshadowing of 7-17 Berry Street, given that it increases existing overshadowing by 75 minutes at mid-winter. The sixth justification is irrelevant since the proposal should comply with the building Height Plane and cl 28D(2)(d). The seventh justification is irrelevant as the solar access requirements under DCP 2002 apply to dwellings other than those falling within the composite shadow. The eighth justification is invalid, since the planning principles established by the Court are intended to fill in the gaps where there is a lack of sufficiently detailed or explicit controls, not where the LEP establishes an exact and explicit control. The ninth justification is invalid for the same reason: the rules of thumb are intended to fill a gap where one exists, not to override council’s controls.

32 In my opinion, a reduction of sunlight on 7-17 Berry Street beyond half-an-hour is not justified. The application of cl 28D(2)(d) is not unnecessary or unreasonable, though I accept the view to which Mr Mossemenear, Mr Harrison and Dr King subscribed, namely that there can be some leniency in interpreting the subclause.

Lack of setback at podium level

33 The Area Character Statement for the North Sydney Central Planning Area requires for Miller, Walker, Berry, Mount and Alfred Streets and Pacific Highway a setback above podium with the weighted average dimension of 5m. The proposal provides no setback.

34 The buildings on the south side of Berry Street do not have a setback above podium. Mr Mossemenear and Mr Harrison disagreed on the need for a setback. It appears that neither of them considered No 8-10, which, at three-storeys is close to the height of the four-storey podium that would be created if the residential tower above the commercial floors were set back. In my opinion, the fact that property is likely to remain at its present height (see section below) suggests that a podium and setback are badly needed to integrate the proposal with its context.

35 The Area Character Statements represent the value judgments made by the council and the North Sydney community. Unless there is s strong reason otherwise, they should be taken at face value and followed. If the value judgments of individual experts were given preference to the Area Character Statement, it would be impossible to implement any urban design principle adopted by the council.

Relationship to the arc drawing in the Area Character Statement

36 The applicant drew some support from the so-called arc drawing in the Area Character Statement. The drawing indicates existing buildings in black and potential height increases in grey. I cannot find any reference to the subject site in the drawing. Moreover, it is difficult to surmise what the arc drawing intends to achieve, since an extension of all buildings to the level of the arc would produce absurd results for North Sydney. However, even if one reads into the arc drawing some licence for additional height, the drawing is part of a development control plan, while the Building Height Plane and cl 28D are part of LEP 2001, so they take precedence.

Amalgamation with 8-10 Berry Street

37 LEP 2001` requires a minimum allotment size of 1,000m2 for development. The subject site is about 50m2 short of this. No 8-10 Berry Street is only about two-thirds of the required minimum.

38 Mr J Nichols, a director of the owner company of 8-10 Berry Street, told the Court that the applicant has not approached him with a viable proposition. On the basis of the meagre correspondence between the parties, I accept that the applicant has not shown a genuine desire to amalgamate with 8-10 Berry Street.

39 I am aware that cl 28D(1)(f) (see above) indicates the council’s desire to

encourage consolidation of sites for provision of high-grade commercial space and provision of public benefits.

40 Despite this, I do not think that the lack of amalgamation in this case would be a reason for refusal. In Karavellas v Sutherland Shire Council [2004] NSWLEC 251 Tuor C stated that the two questions to be answered when dealing with the amalgamation of sites are;

· First, is amalgamation of the sites feasible?

· Second, can orderly and economic use and development of the separate sites be achieved if amalgamation is not feasible?

41 No 8-10 Berry Street adjoins the residential zone to the west as well as the north. It is therefore the subject to two Building Height Planes, unlike the subject site, which is subject to only one on the north boundary. If the subject site were amalgamated with No 8-10, it would also become subject to Building Height Planes on two sides. The development potential of the site would thus be significantly reduced. It is therefore not surprising that the applicant showed little enthusiasm for amalgamation. Given the economic disincentive embodied in the council’s controls, I do not think that amalgamation is feasible.

42 Mr Harrison and Mr Mossemenear agreed that either the existing building on No 8-10 is likely to remain, or a new building would have a similar volume to the existing. This is because the existing building is already in serious breach of the Building Height Plane. In assessing any future application for No 8-10, the council might conclude that the existing breach may be repeated, but it is unlikely that it would agree to an increase of the breach. I conclude therefore that the existing building, as well as the separate development of No 8-10 would not be very different from a joint development on an amalgamated site. The advantage of single vehicular access from Doohat Lane is possible under both scenarios.

43 For the above reasons, the lack of amalgamation with No 8-10 is not a reason for refusal. The SEPP1 Objection to the allotment size of the size, just short of the required minimum, was not the subject of major disagreement. Given my finding on the issue of amalgamation, I do not think that the size of the allotment is a reason for refusal.

Conclusions

44 The proposal breaches cls 28D(2)(d) and 30 of LEP 2001. In addition it disregards the requirement for a 5m setback above the podium in the Area Character Statement. The Objections under SEPP 1 (with the exception to the Objection to minimum allotment size) are not well founded; hence the application must fail.

45 The applicant indicated in submissions that, if the Court saw a simple way of amending the proposal to achieve an acceptable solution, it should not make orders and allow the applicant to prepare revised drawings. In this case, however, an acceptable solution is too far from the proposal before the Court to justify this course of action. The appeal is therefore dismissed.

Orders

1. The appeal is dismissed.

2. Development application to demolish the existing buildings and erect a 14-storey commercial/residential building on lots 5, 6 and 7 DP 237104, known as 12-16 Berry Street, North Sydney is determined by refusal.

3. The exhibits are returned.

___________________
Dr John Roseth
Senior Commissioner