Suk So v North Sydney Council

[2008] NSWLEC 1384

Land and Environment Court

of New South Wales

CITATION:

Suk So v North Sydney Council [2008] NSWLEC 1384

PARTIES:

APPLICANT
Suk So

RESPONDENT
North Sydney Council

FILE NUMBER(S):

10035 of 2008

CORAM:

Bly C

KEY ISSUES:

Development Application :- Construction of 2-storey dwelling, amenity impacts, streetscape and character.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No. 1 Development Standards
North Sydney Local Environmental Plan 2001
North Sydney Development Control Plan 2002.

DATES OF HEARING:

18/06/2008, 29/08/2008 and 05/09/2008

EX TEMPORE JUDGMENT DATE:

5 September 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr C. Gough, solicitor and
Mr A. Gough, solicitor
of Storey & Gough Lawyers

RESPONDENT
Ms K. Gerathy, solicitor
of HWL Ebsworth

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

5 September 2008

10035 of 2008 Suk So v North Sydney Council

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

JUDGMENT

1 This is an appeal against council’s refusal of Development Application D93/07 involving the demolition of an existing dwelling and the construction of a new two-storey dwelling with basement car parking at 30 Larkin Street, Waverton.

2 The rectangular shaped site has a frontage of 14.3 m, an area of 567 sq m and falls approximately 5 mfrom its rear boundary towards Larkin Street. It overlooks Waverton Park on the opposite side of Larkin Street. Surrounding development mainly comprises one and two-storey detached dwelling houses, including three heritage listed properties.

3 The site is zoned Residential A(1) under North Sydney Local Environmental Plan 2001. In this zone, the development is permissible with development consent. Clause 14 of the LEP relevantly requires that the aims and objectives of the LEP be taken into consideration and that consent must not be granted if the development is inconsistent with the aims of the plan, the objectives of the zone or any relevantly applicable controls.

4 The relevantly applicable aims and objectives essentially comprise the need for development to be compatible with neighbouring development in terms of bulk, scale and appearance and to protect neighbour and neighbourhood amenity. The objectives in the special provisions in cl 16 of the LEP seek to ensure that buildings are compatible with the context and that new development promotes the character of the neighbourhood.

5 Clause 18 of the LEP contains a building height plane that aims to control the bulk and scale and separation of buildings whilst preserving the amenity of existing dwellings and ensuring the amenity of new dwellings, particularly in relation to shadows, privacy, views, ventilation and solar access. The proposed building exceeds the building height plane and an objection pursuant to State Environmental Planning Policy No. 1 -Development Standards has been provided. In this regard, cl 18(5) only allows such an objection to be considered provided that there is no material overshadowing, view loss or daylight obstruction.

6 Also applicable is North Sydney Development Control Plan 2002. Relevantly, s 7 suggests that the residential development should not have adverse impacts on residential amenity or environmental quality and is to be in context with and consistent with the character of surrounding development. These tests are to be applied in the context of the relevant character statement in the DCP. In terms of built form, new buildings should be designed to fit within the existing topography and relate to the rhythm and pattern of characteristic buildings in the streetscape. Importantly, no one building or feature should dominate. Also, the characteristic pattern of setbacks and building orientation should be reinforced and the size of new buildings should be consistent with that of surrounding characteristic buildings. Where new buildings are to be located amongst existing buildings that have a consistent façade, the size, location and proportions of windows, door openings and other distinctive features such as roof form are to be repeated. More particularly, pitched roofs should be used except where another roof form is identified in a character statement for the neighbourhood, this not being the case here.

7 The relevant character statement notes that the building topology comprises brick and tile detached houses on garden lots and requires that redevelopment be of a similar scale to that existing, and that built form should reinforce and reflect existing built form.

8 On behalf of the respondent council, Mr G Mossemenear gave expert town planning evidence and, on behalf of the applicant, Mr N Dixon gave expert (hereafter) town planning and urban design evidence. The Court also heard from a number of residents, including the neighbours from the adjoining properties at 28 and 32 Larkin Street. The matters raised in the original Statement of Contentions essentially involved the impacts on the neighbours at Nos. 28 and 32, the impacts of the development on the streetscape and the character of the area. In this latter context, the non-compliance with the building height plane was also of concern.

9 Since the beginning of the hearing, the two experts have consulted and discussed the impacts and, with some direction from the Court, a revised design has now been prepared, Exhibit K. I now understand that it is Mr Mossemenear’s opinion that this revised design resolves all of his concerns and, as a consequence, there are no matters in contention that are pressed by the council.

10 I have reviewed this revised design and taking into account the photo montages that accompanied the architectural plans, I can see no aspect of the design that would be unsatisfactory in terms of streetscape and the character of the area taking into account the form, nature and character of development in the locality. I have reached this conclusion, in the context of the tests in cl 14 of the LEP and the associated aims and objectives as well as the special provisions in cl 16. Relevantly here, I also am satisfied that the character requirements of the DCP have been met.

11 The original design, in my view, would have failed to meet the requirements in the DCP involving character and streetscape and the requirements that result from the relevant character statement. Of particular concern in that regard was that no one building or feature should dominate and that pitched roofs should be used except where another roof form is identified in the character statement. That building would have failed both of these tests.

12 The amended plan, however, particularly considering the photo montage, reveals a modern building in a traditional setting. Its differences will be apparent but I am satisfied that it will not dominate the streetscape, in part at least because of the modified roof form that, as now agreed by Mr Mossemenear and Mr Dixon is appropriately responsive to the pitched roofs of surrounding buildings.

13 The impacts on the neighbours at 28 and 32 resulting from the original design principally involved building bulk, overshadowing and daylight obstruction. The amended design has responded directly to these concerns and, as I understand it, in Mr Mossemenear’s opinion those impacts are now within reason. There being concurrent agreement in this regard by Mr Dixon, I now accept that there will be no material impacts on those neighbours. As a consequence, the objection under SEPP1 can be utilised as a means of enabling this building to infringe the building height plane in cl 18 of the LEP. Having considered the amended SEPP1 objection, in the light of all of the evidence provided, I am satisfied that it should be, for the reasons contained therein, upheld.

14 I have therefore decided that the appeal should be upheld and conditional development consent granted for the demolition of the existing building and the construction of a new two-storey dwelling with basement car parking at 30 Larkin Street, Waverton, subject to the conditions in Exhibit 8. Exhibits K and 8 will be retained.

___________________

T A Bly
Commissioner of the Court
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