Shepherd & Rowe v Lane Cove Council

[2004] NSWLEC 691

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:     Shepherd & Rowe v Lane Cove Council [2004]  NSWLEC 691

PARTIES:
APPLICANTS
Robert Trevor Shepherd and
Jan Rowe

RESPONDENT
Lane Cove Council

CASE NUMBER:     11001 of        2003

CATCH WORDS:     Development Application

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Lane Cove Local Environmental Plan 1987

CORAM:        Brown C

DATES OF HEARING:        10/02/04

EX TEMPORE DATE:          10/02/2004

LEGAL REPRESENTATIVES

APPLICANT
Mr M Fraser, barrister
SOLICITORS
Whitfields Solcitors

RESPONDENT
Mr S Griffiths, solicitor
SOLICITORS
Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

10 February 2004

11001 of 2003                   Robert Trevor Shepherd and Jan Rowe v Lane Cove Council

JUDGMENT

1. This is an appeal against the refusal by Lane Cove Council (the council) of the development application to erect a dwelling house on vacant land at 24 Fleming Street, Lane Cove being lot 52 in DP 871276 (the site).  The matter was set down as an On-Site hearing although after the site inspection the parties adjourned to Court for further discussion.

1. The site is irregular in shape with a total area of 656.4 sq m. Access is provided from Fleming Street via a number of rights of carriage way.  The site consists of two distinct areas.  The upper part (closer to Fleming Street) makes up the narrower portion of the lot and is to accommodate two car parking spaces in addition to further landscaping.  The lower part of the site is some 7 m below the upper part and is the location for the proposed dwelling.  Access between the upper and lower parts of the lot is obtained by suspended walkway. 

1. The site is zoned Residential 2(a1) pursuant to Lane Cove Local Environmental Plan 1987 (the LEP).  The proposed use is permissible with council consent within this zone.  The councils Code and Development Application Checklist for Dwelling houses, Fences, Private Swimming Pools and Outbuilding (the Code) also applies to the subject application.

1. The council filed an amended Statement of Issues containing 13 issues, issues although these issues can be grouped into two main areas.  These are:

   1.     Whether the proposed development is an overdevelopment and has an unacceptable impact on the adjoining properties and the character of the area.

   2.     Whether the proposed dwelling unacceptably impacts on existing Blackbutt trees.

2. Mr Warren Long, a town planner provided council’s evidence and Mr Kevin Brody also a town planner provided evidence for the applicant.  A joint statement was also provided. 

1. The areas of dispute related principally to the breaches of the height and floor space ratio (FSR) requirements in the Code and to some extent the interpretation of these provisions.  Mr Long’s position was that the breaches represented an over development and a design that is not appropriate for the site.  Mr Brody takes the opposite view.

1. The Code provides for a FSR of 0.5:1.  Mr Long calculates the FSR at 0.69:1 based on the definition in the Code.  Mr Brody calculates the FSR at 0.44:1 but using definitions from the Model Provisions.  While there was ongoing disagreement over the appropriate definition, the parties helpfully accepted that the critical issue was the impact of the scale and bulk of the development on the character of the adjoining area.

1. With the benefit of an inspection of the subject site and the surrounding area, I prefer the conclusions reached by Mr Brody.  The relevant objectives of the FSR control are to limit the bulk of the building and to ensure that the building is in scale with the character of the neighbourhood.  I accept that the proposal satisfactorily addresses these objectives for a number of reasons.

2. The location of the dwelling is within a sandstone cut.  There was some suggestion that it was a previous quarry although this is not overly important in consideration of this application.  The building sits within this cut and from the upper level is seen generally as single storey building.  When viewed from a more oblique angle, it is seen as a higher building but not noticeably different from other buildings in the area due to the generally steep topography of the area. 

1. The greatest potential impact in on the property at 24A Fleming Street.  It is located between the site and River Road.  The proposal, at its closest point, is some 1.5 m from the boundary.  This location is a balcony while the main part of the building is some 3 m from the boundary.  At this point the building is seen as a two level building with an under croft.   Importantly, it adjoins the vehicular turning and car parking areas for 24A and not any recreational areas.  These are located on the opposite side of the dwelling and are largely unaffected by the proposal in terms of overlooking and loss of privacy.  Similarly, overlooking is limited from 24A Fleming Street by the location of the verandahs and the rooms in this property.

1. In concluding that the FSR is acceptable, I am mindful that the difference between Mr Long’s calculations and Mr Brody’s calculations is the inclusion of the under croft area by Mr Long.  This area is open and is shown on the plans as being landscaped.  Clause 4(e) of the Code provides that the requirements in the Code can be waived in “unusual and or exceptional circumstances”.  I accept that the circumstances in this case warrant the variation to the FSR. 

1. The height requirement in the Code is also exceeded.  Mr Long calculates the ceiling height at 10.2 m and the overall height at 11.495 m.  The corresponding requirements in the Code are 7 m and 9.5 m respectively.  Mr Brody relies on the excavation to conclude that the natural ground level would have been higher than the current artificially low level.  Plans provided by the applicant showing an estimation of the previous ground level indicate a general compliance with the height requirement with the areas of non-compliance being limited to some small sections of the proposed dwelling. 

2. The relevant objectives for the height standard seek to control the height, bulk and scale of the new dwellings so that they are in harmony with surrounding buildings.  For reasons mentioned earlier I accept that the proposal satisfactorily addresses the matters of bulk, scale and relationship with adjoining buildings.  Other objectives relate to view sharing, solar access and overshadowing although these were not seen as issues by the council in these proceedings. 

1. In concluding that the height is acceptable I have also taken into account that the calculation of height relates to natural ground level.  The definition in the Code states that this level is the ground level prior to any cutting filling or grading.  The definition also allows for a level to be determined by the council, or in this case the Court.  Based on the estimated level of the natural ground provided by the applicant, I accept the proposal in terms of height is acceptable.  I am also mindful of provisions of cl. 4(e) of the Code.

1. The two trees at issue are located directly adjoining the right of carriage way and the north-western corner of the dwellings.  The retention of the trees would necessitate amendments to the dwelling if they are to be retained. 

1. Mr Ian English, an arborist provided evidence for the council and Mr William Horne, also an arborist, provided evidence for the applicant.  The joint statement provided the following areas of agreement:

   1.     Both trees are in fair condition and their form could be improved with routine maintenance

   2.     Both trees are considered to have a safe and useful life expectancy of up to 40 years given routine maintenance.

2. Notwithstanding this agreement, Mr Horne supported the removal of the trees. 

1. During the hearing the applicant provided amended plans for the dwelling to retain the trees at issue.  The amendment was supported by the council.

1. The only remaining issue was whether the amended dwelling design should be a deferred commencement condition or a general condition.  For caution, I accept the council’s position that the amended dwelling design should be a deferred commencement so that it can be properly assessed.  The other conditions were accepted by the applicant with some agreed changed. 

1. On this basis, the Orders of the Court are:

1.The appeal is upheld.

2.Development Application D419/01 for the erection of a dwelling at 24 Fleming Street, Lane Cove is approved subject to the conditions in Annexure A.

__________________________
G T Brown
Commissioner of the Court

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