Scott Mitchell v North Sydney Council

[2006] NSWLEC 450

Land and Environment Court

of New South Wales

CITATION:	Scott Mitchell v North Sydney Council [2006] NSWLEC 450
PARTIES:	APPLICANT Scott Mitchell RESPONDENT North Sydney Council
FILE NUMBER(S):	10168 of 2006
CORAM:	Brown C
KEY ISSUES:	Development Application :- alterations and additions to an existing dwelling - whether condition requiring deletion of carport should be imposed - breach of landscape area and building height plane requirements - streetscape - amenity impacts
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No. 1 North Sydney Local Environmental Plan 2001
CASES CITED:	Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46
DATES OF HEARING:	9/06/06, 17/07/06
DATE OF JUDGMENT:	07/21/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr B Hones, solicitor SOLICITORS Hones Lawyers RESPONDENT Mr S Kondilios, solicitor Ms P Whitford, solicitor SOLICITORS Maddocks

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

21 July 2006

10168 of 2006 Scott Mitchell v North Sydney Council

JUDGMENT

1 COMMISSIONER: This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the imposition of a condition imposed by North Sydney Council (the council) in their approval of Development Consent No. 154/05 for alterations and additions to an existing dwelling at 90 MacPherson St., Cremorne (the subject site).

2 The condition in dispute is Condition A4 which states:

The carport, vehicular crossing, front fence or new external entry stairs from street level to the front garden area, all shown on the submitted drawings, are not approved as part of this application.

Amended plans demonstrating compliance are to be provided with the Construction Certificate, to the satisfaction of the Certifying Authority.

(Reason: To ensure compliance with the Council’s Planning Controls)

3 The proposed carport is located at the property boundary with MacPherson St and abutting the southern boundary. There is a significant difference in level between the footpath level and the front yard of the subject site with a vertical retaining wall of some 3.2 metres. To address the change in level the carport is located on piers. A similar topographical relationship exists with both adjoining properties. A garage is located to the south at 88 MacPherson St that provides direct access from the MacPherson St level.

4 Following the submission of a further plans the council did not press the issue of the front fence. The remaining issues raised by the council were the non-compliance with the minimum landscaped area requirements and the impact of the proposed carport on the streetscape.

5 Mr Petar Kuessner of 88 MacPherson St objected to the proposed carport and raised additional issues on the location of the proposed carport and the adverse effect it would have on his property in relation to loss of views, overshadowing and the visual impact of the carport when combined with a similar structure on his property.

6 Mr Andrew Minto was the Court appointed town planning expert.

7 The proceedings commenced with a site view on 9 June 2006. Mr Kuessner provided his evidence at this time and pointed out his particular concerns to the Court from his property. The Court also had the benefit of an inspection of the subject site and surrounding area to address the streetscape issue.

8 With the recommencement of the hearing it was accepted by the parties that the proposed carport breached the building height plane requirements in cl 18 of North Sydney Local Environmental Plan 2001 (LEP 2001). As this requirement was a development standard and no objection under State Environmental Planning Policy No. 1 - Development Standards (SEPP 1) was provided, the Court granted an adjournment to allow for the SEPP 1 objection to be prepared. Directions were given for the preparation, consideration by the council and Mr Minto and filing of the SEPP 1 objection. A supplementary report by Mr Minto on the SEPP 1 objection was filed and amended plans were also provided that set the carport back 1.2m from Mr Kuessner’s property. Additional submissions were made on the SEPP 1 objection and amended plans on 18 July 2006 including a reaffirmation of the objection from Mr Kuessner for similar reasons to that given for the original proposal.

Minimum landscaped area

9 Clause 20(1) of LEP 2001 provides landscaped area objectives. Clause 20(2) provides that the proposal must provide 50% of the site area as landscaped area. Schedule 2 provides a definition of landscaped area. A SEPP 1 objection was provided to show why the departure was not unreasonable or unnecessary in the circumstances of the case.

10 The parties agreed that the proposed development provided 46% landscaped area based on the definition within LEP 2001. They also agreed that if North Sydney Council -Development Control Plan 2002 (DCP 2002) was taken into consideration the proposed development provided 49.7% landscaped area. If the area underneath the proposed carport was included the proposed development provided 53.4% landscaped area.

11 The appropriate manner of dealing with a SEPP 1 objection is found in the judgment of Lloyd J in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46, at par 26, where a number of questions are posed. The first question asks whether the subject planning control is a development standard. In this regard there was no dispute that the answer to this question was yes. The second question asks what is the underlying object or purpose of the standard. The third question asks whether compliance with the development standard is consistent with the aims of SEPP 1. The aims state:

3. This policy provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable and unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act.

12 This question also asks does compliance with the development standard tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. These objects state:

5.The objects of this Act are:

(i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment;
(ii) the promotion and coordination of the orderly and economic use and development of land.

13 The fourth question asks whether compliance with the development standard is unreasonable or unnecessary in the circumstances of case. The fifth, and final question asks whether the objection is well founded.

14 The objectives for the development standard as set out in cl 20(1). These are:

(a) promote the character of the neighbourhood, and
(b) provide useable private open space for the enjoyment of
residents, and
(c) provide a landscaped buffer between adjoining properties, and
(d) maximise retention and absorption of surface drainage water on site, and
(e) minimise obstruction to the underground flow of water, and
(f) promote substantial landscaping, including trees which will grow to a minimum height of 15 metres, and
(g) control site density, and
(h) minimise site disturbance.

15 Landscaped area is defined as:

landscaped area of a site means the 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 or hard-surfaced tennis court, or the like, that is or 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 area set aside for driveways and parking.

16 The applicant provided an SEPP 1 objection that addressed the objects of the development standard and the matters required by the tests in Winten. It concluded that the proposal is consistent with the underlying purpose and object of the development standard and it is unreasonable to require strict compliance with the development standard.

17 Mr Minto states that the calculations contained within the SEPP 1 objection are incorrect and should not be relied upon. For this reason and further matters set out in his statement he states that in the absence of a well founded SEPP 1 objection consent cannot be granted.

18 The SEPP 1 objection provides for a landscaped area of 49.2% however this calculation predates the agreed position on the variation to the development standard. If the most conservative figure of 46% is used, I accept that the reasoning in the SEPP 1 objection is still valid and sound and supports a variation to the development standard.

19 The inconsistency between LEP 2000 and DCP 2002 centres on whether to include or not include the area under the eaves in the calculations for landscaped area. Put simply, LEP 2000 excludes this area whereas the DCP 2002 includes the area subject to the satisfaction of other requirements. In my view, the area under the eaves satisfies the objectives of the development standard and clearly supports a variation to the strict interpretation of the development standard.

20 Even if a 4% variation to the development standard is tested against the objectives, I accept that strict compliance with the development standard would be inconsistent with the aims of SEPP 1 and would tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. Consequently, strict compliance with the development standard is unreasonable and unnecessary in this instance and it follows and that the SEPP 1 objection is well founded.

21 The proposal is also subject to Draft Environmental Planning Policy (Application of Development Standards) 2004 (the draft Policy) as it is a draft environmental planning instrument that had already been placed on public exhibition with the advertising period concluding on 18 June 2004. It provides for the repeal of SEPP 1. In this case, the draft Policy is a relevant consideration and the Court is required to determine the amount of weight to be placed on its provisions in the assessment of the proposed development.

22 In this case, no evidence was produced on the status of the draft Policy. For this reason, the draft Policy is not imminent or certain. Consequently, it should be given no weight in proceedings.

Building height plane

23 Clause 18(1) provides objectives for the building height plane. These are to control the bulk and scale of buildings (Objective (a)), provide separation between buildings (Objective (b)) and preserve amenity in relation to shadowing, privacy, views, ventilation and solar access (Objective (c)).

24 Clause 18(5) provides that consent must not be granted pursuant to SEPP 1 if the building would materially overshadow (cl 18(5)(a)) or materially reduce the level of privacy (cl 18(5)(b)) or materially obstruct views (cl 18(5)(c)) or materially obstruct daylight or ventilation (cl 18(5)(d) to any existing or new property.

25 The proposed carport breaches the building height plane by 0.6m to 1.0m on the eastern and front boundary and by 1.3 m to 2.4m on the southern side boundary.

26 The SEPP 1 objection states that the proposal is consistent with the underlying purpose and objectives of the development standard and the SEPP 1 objection is well founded for the following reasons.

27 Using the questions in Winten, the SEPP 1 objection states that bulk and scale, when viewed from the adjoining property, is acceptable as the proposal provides for an open structure now setback 1.2m from the boundary. A greater setback is not possible because of the constraints imposed by the existing power pole and bus stop. The objective relating to separation between buildings is satisfied as the carport is well separated from other buildings and now provides greater opportunity for landscaping.

28 In accepting that the structure does create some overshadowing on the front yard of the adjoining property, the SEPP 1 objection states the area is not the principal private open space of the property and the extent of overshadowing is mitigated by locating the structure as far off the boundary as possible. Additionally, the windows on the eastern facade of the adjoining property will retain solar access between 10 a.m. and 3 p.m. in the midwinter and the requirements for solar access in DCP 2002 are satisfied.

29 The carport will not obstruct any views from the neighbouring property although there will be some reduction in outlook from the front yard. The carport will also not reduce daylight or impede ventilation to the neighbouring building or principal private open spaces in any material or unreasonable way.

30 In accordance with cl 18(5), I find that that the proposed carport does not materially affect the adjoining property in the areas identified in cl 18(5)(a) to (d) for the reasons set out in the SEPP 1 objection.

31 Mr Minto supports the SEPP 1 objection in his supplementary report and I agree with his conclusions. If the variation to the development standard is tested against the objectives, I accept that compliance with the development standard would be inconsistent with the aims of SEPP 1 and would tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. Consequently, strict compliance with the development standard is unreasonable and unnecessary in this instance and it follows and that the SEPP 1 objection is well founded.

Streetscape

32 Clause 14(2) provides that consent must not be granted unless a proposal is consistent with the specific aims of the plan, the objectives of the zone or the objectives of the controls.

33 The general aims of the plan require "development that is appropriate to its context…." (cl 2(b)) and the specific aims in relation to the character of North Sydney neighbourhoods are to "promote the character of the neighbourhood and development which is compatible with neighbouring development in terms of bulk, scale and appearance" (cl 3(a)(i)).

34 Mr Minto states that the existence of the proposed a single carport within the existing streetscape is an acceptable outcome for the site based on the topography of the subject site, the existence of similar structures in the vicinity and the modified design that provides for a lower and more open structure.

35 With the benefit of the site view I agree with Mr Minto and find that the proposed carport, pursuant to cl 14(2), is consistent with the relevant aims of the plan, objectives of the zone and objectives of the controls.

Orders

36 For the reasons in the preceding paragraphs the orders of the Court are:

1) The appeal is upheld.
2) Development Consent No. 154/05 for alterations and additions to an existing dwelling at 90 MacPherson St., Cremorne is approved subject to the conditions in Annexure A.
3) The exhibits are returned with the exception of exhibits H and J.

______________
G T Brown
Commissioner of the Court