Land and Environment Court of New South Wales CITATION : Mathers v North Sydney Council [2000] NSWLEC 84 APPLICANT: Alfred William Watt Mathers PARTIES : RESPONDENT: North Sydney Council FILE NUMBER(S) : 11137 of 1999 CORAM: Talbot J KEY ISSUES: Development Application :- weight to be attributed to draft LEP LEGISLATION CITED: Environmental Planning and Assessment Act 1979 CASES CITED: DATES OF HEARING: 26/04/2000, 27/04/2000 DATE OF JUDGMENT: 04/28/2000 APPLICANT: Mr G N McKee (Solicitor) SOLICITORS: McKees LEGAL REPRESENTATIVES: RESPONDENT: Miss D J Townsend (Solicitor) SOLICITORS: Mallesons Stephen Jaques JUDGMENT: IN THE LAND AND Matter No. 11137 of 1999 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 28 April, 2000 Alfred William Watt Mathers Applicant v North Sydney Council Respondent REASONS FOR JUDGMENT The proposal 1. The applicant originally appealed against a deemed refusal of its development application to demolish an existing dwelling house at 214 Ben Boyd Road, Neutral Bay and to erect four attached dwellings in a building constructed over basement car parking providing a total of seven car spaces. 2. Subsequent to the lodgment of the appeal by notice dated 21 December 1999, the council refused the development application. 3. The subject property consists of one allotment comprising an area of approximately 570 square metres. The site is generally level and is located on the western side of Ben Boyd Road, approximately 15 metres north of Oaks Avenue. 4. The existing dwelling consists of a single storey federation style bungalow set back around 6.2 metres at its closest point from Ben Boyd Road. The planning controls (a) LEP 1989 5. The land is within zone No 2(c) (Residential "C") under North Sydney LEP 1989 ("LEP 1989"). 6. The relevant particular objective of this zone is to permit a form of development which is compatible with the scale and character of the existing locality. 7. Attached dwellings are permissible with consent. The proposal meets the definition of attached dwelling as being a building on a single allotment containing two or more dwellings, each dwelling having an individual entrance and access to a courtyard at natural ground level, being a dwelling no part of which is superimposed on any part of another dwelling and includes dwellings in a row of two or more dwellings attached to each other such as are commonly known as townhouses. 8. There is no dispute between the parties that the proposed development is for attached dwellings. 9. Apart from a minor infringement of the building height plane, which meets the exemption within cl 13(2), the building will satisfy the numerical requirements of LEP 1989. 10. Development Control Plan No. 1 ("DCP 1") aims to provide more detailed provisions than are contained in LEP 1989 for the assessment of development applications, with specific controls for conservation areas. (b) Draft North Sydney LEP 2000 11. The revised and re-exhibited Draft North Sydney LEP 2000 ("the draft LEP 2000") provides that where a development application has been lodged but not determined before the commencement of the plan, the environmental planning instruments repealed or amended by the plan shall apply as if the plan had been exhibited but had not commenced. If the draft LEP 2000 was in effect at this date, the development application would nevertheless be saved by the above provision but there could be no doubt about the imminence or certainty of the making of the draft LEP for the purposes of s 79C of the EP&A Act. 12. Under the draft LEP 2000 the land will be within the Residential A2 Zone. Relevantly, the particular objectives of this zone are:- (a) maintain lower scale residential neighbourhoods of mainly detached and duplex housing; (b) assist in the conservation of heritage and other sensitive areas; (c) encourage the retention of existing buildings. 13. Only attached dwelling developments in existing attached dwelling developments will be permissible under the draft LEP 2000. 14. Accordingly, under cl 10(2) of the draft LEP 2000, the proposed development will be prohibited development and may not be carried out in the zone. 15. Under the draft LEP 2000 the existing building on the site is recognised as a contributory item to the Park/Oaks Avenue Conservation Area. 16. The draft LEP 2000 has only just come off exhibition and submissions have not been considered. However, the weight to be given to the draft LEP must be assessed with the understanding that it is essentially a consolidation of draft LEP 1989 and the draft Heritage LEP, both of which have been previously exhibited. 17. The present draft LEP and the earlier draft provide that the zoning for the subject site, height controls and applicable building height plane are to a similar effect. The minister has accepted a recommendation of the Residential Strategy Advisory Committee that the Revised Residential Development Strategy underpinning the draft LEP be endorsed. 18. The specific objectives of the conservation area control stated in cl 51 of draft LEP 2000 include an objective to prevent the demolition of contributory items. Pursuant to subcl 5 of cl 51, council must not grant consent to development including demolition of a building within a conservation area until it has considered, inter alia, if the proposed development involves a contributory item and whether the proposed development will have an adverse affect on the significance of the conservation area, as a whole and in the immediate vicinity of the proposed development. 19. Clause 51(2)(c) will direct the council to review a wide range of elements of a proposed building within a conservation area to consider whether those specified elements are similar to those used in contributory items within the conservation area. 20. Furthermore, by cl 51(6) the council will be precluded from granting consent to the demolition of any building within a conservation area until it has considered a statement of heritage impact and a structural engineer's report. 21. Finally, cl 24 of the draft LEP 2000 under the heading "Attached dwelling development objectives" identifies a specific objective of the attached dwelling development controls as to avoid carriage development so that even if attached dwellings were to be permissible on the site, the controls will be directed against the type of development proposed by the applicant. 22. The applicant's consultant town planner, Mr Peter Le Bas, stated that the draft LEP 2000 effectively proposes that demolition of contributory items would be prohibited. This statement is not supported by the applicant's solicitor, Mr McKee. 23. The first recommendation for the establishment of the Park/Oaks Avenue Conservation Area came in the Heritage Study Review undertaken for the council by Godden Mackay in 1993. In 1994 the council adopted this recommendation, among others, in Local Approvals Policy 4 ("LAP 4"). LAP 4 provides that, in considering an application to demolish a building within a proposed conservation area, the council should take into account:- _ the heritage significance of the conservation area _ the structural condition of the building _ whether the building is characteristic of the conservation area. 24. The heritage provisions in the draft LEP 2000 are supported by a Heritage and Cultural Resources Study commissioned in 1997 and completed in 1998. It identifies four categories of places that exist in the conservation area. The study states that a contributory item is understood to mean a building or place which in its own right does not meet inclusion guidelines as a heritage item but which makes a significant contribution to the character of the conservation area. 25. The Oaks/Park Avenue area is described as a somewhat composite conservation area comprised of two distinct precincts separated by Ernest Street. The area on the southern side of Ernest Street is not included in the conservation area created by the draft LEP 2000. 26. By resolution the council has recently adopted an Area Character Study. The study thereby meets the definition of a character statement in the draft LEP 2000. The Park Avenue conservation area is referred to as characterised by a consistent group of low scale, modest size housing, with steps, building alignments and set backs. Dwellings are described as single storey, attached and detached. 27. Clause 5 of the draft LEP 2000 will not discharge the consent authority, hence the Court, from the obligation to take into consideration the provisions of the draft LEP 2000 pursuant to s 79C(1)(ii). 28. The development clearly will be prohibited development as attached dwellings and will be contrary to the objective to prevent the demolition of contributory items in accordance with cl 51. 29. It is appropriate given the history of the development of the draft instruments to give draft LEP 2000 significant weight to the extent the Court is satisfied that approving the development will not detract from its objectives as expressly stated or reflected in the proposed controls, after taking account of the location within the conservation area and the relationship to other buildings, including other contributory items. 30. The draft LEP 2000 must be regarded with a high degree of certainty and although temporally it is not imminent (having just come off exhibition), nevertheless the period during which its aims, objective and individual provisions have been under consideration is an important factor in assessing the weight to be given to it. The issues 31. The council submitted a statement of issues containing six issues. At the commencement of the hearing the council's advocate, Ms D Townsend, restated the main issues as follows:- (1) Whether the demolition of the existing building is appropriate; (a) in view of its being in a future conservation area that was first proposed in 1993 and has since been reconfirmed in various studies, policies and plans; and (b) in view of the provisions of draft LEP 2000. (2) Whether the proposed building is acceptable in its bulk, form and scale. (3) Whether the impact on the southern adjoining properties is acceptable. (4) Whether the proposed building is appropriate in view of the provisions of draft LEP 2000. Demolition of existing building 32. To the north of the subject site is a similar turn of the century cottage, No 216. Beyond No 216, further to the north are apartment buildings. 33. To the south is a corner property, divided into two residences, 212 Ben Boyd Road and 22 Oaks Avenue. That property has been significantly altered and has a high fence at the street boundary. 34. On the opposite corner of Ben Boyd Road and Oaks Avenue is a high rise apartment building, called Montrose. 35. LEP 1989 does not identify the Park/Oaks Avenue Conservation Area. The building is not a heritage item. There are no provisions with statutory force preventing its demolition. The council's case against demolition is based primarily on the planning work undertaken since 1989 that culminated in the exhibition of draft LEP 2000. 36. The Heritage and Cultural Resources Study re-confirms the establishment of the Park/Oaks Avenue Conservation Area and identifies the subject property as a contributory item. The Park/Oaks Avenue Conservation Area was included in the exhibited draft LEP 2000. The heritage and conservation provisions of the draft LEP, including the conservation area, were exhibited earlier, in 1997. 37. A senior strategic planner employed by council, Eden Shepherd, gave evidence on the heritage aspects. In his opinion, the building should not be demolished since the Park/Oaks Avenue Conservation Area has major heritage significance and the building is in good condition and characteristic of the conservation area. 38. Robert Staas, the heritage consultant architect retained by the applicant, agrees that the conservation area is significant, but he maintains that its boundaries have been wrongly drawn. He points out that while the conservation area is centred on Oaks Avenue, the subject property faces Ben Boyd Road which has a different character altogether. He considers the subject property and its northern neighbour, No 212, to be cut off from the main part of the conservation area by uncharacteristic development. 39. In the Court's opinion, Mr Staas' evidence has a great deal of force. The houses along Oaks Avenue are rarely within the same view as the subject site which, together with its northern neighbour, No 216, is part of the Ben Boyd Road streetscape. That streetscape, at least on the western side, is dominated by high and medium rise apartment buildings. The three surviving single-storey buildings, Nos 212, 214 and 216, are not sufficient to imbue the street with a character that could be worthy of a conservation area. 40. While accepting Mr Shepherd's evidence that the conservation area is significant and the existing building on the subject site is in good condition and relatively intact, an additional consideration to those listed in LAP 4 comes into play. This additional consideration is whether the building to be demolished is perceived as part of the conservation area. In the Court's view it is not. The demolition of the building on the subject site would have little impact on the integrity and quality of the conservation area. 41. The draft LEP places this site within the conservation area and identifies it as a contributory item. Attached dwellings will be prohibited. 42. For reasons stated above, significant weight needs to be placed on the draft LEP. It is accepted that the draft LEP has a high degree of certainty. However, this certainty relates to the general intent of the draft LEP, rather than to its every detailed provision. As regards the subject site, the evidence indicates that there is disagreement between experts whether or not the site is properly part of the conservation area. 43. The applicant has lodged a submission objecting to the inclusion of the site in the conservation area and to its proposed zoning as Residential A2. The council has not yet had the opportunity to consider submissions. 44. Although the Court accepts that the draft LEP as a whole has a high degree of certainty, the inclusion of this site in the conservation area is still open to some conjecture. 45. It is clear from cl 51 of the draft LEP that the objective of the draft LEP is to prevent the demolition of contributory items. If the draft LEP's current provisions in relation to this site remain unchanged, there is no doubt that demolition of the subject property would detract from the aims and objectives of the draft LEP. 46. Clause 51(5)(a) will require the council to consider whether proposed development will have an adverse effect on the character and heritage significance of the conservation area, as a whole and in the immediate vicinity of the proposed development, where the proposed development involves demolition of a building. The evidence of Mr Staas is that this will not be the case. The Court has concluded that the demolition of the existing building will not be inconsistent with the long line of work done by the council on heritage conservation, nor with the general intent of draft LEP 2000. Bulk, form and scale 47. The proposed building is two storeys above basement parking with an attic floor within the roof. The four dwellings will be in a row along the side boundary, with only one dwelling facing the street. The council and the draft LEP 2000 refer to this form of development as "carriage" development. 48. The council's consultant planner, Robert Chambers, considers the bulk, form and scale of the proposal to be inappropriate. He describes it as a two-storey building with pitched roof form in a "carriage" or row style on a single residential lot. Because it adjoins single storey dwellings to the north and the south, he says the proposal will introduce a bulk of development considerably greater than the buildings on either side. 49. The applicant's consultant town planner, Peter Le Bas, and Mr Staas do not agree that the proposal will be bulky or out of place. In their opinion the site is visually separated from the core of the Oaks Avenue conservation area. 50. The Ben Boyd Road streetscape is not directly linked to the streetscape or character of Oaks Avenue and is presently highly affected by overpowering multi-storey developments. 51. Mr Staas considers that carriage style development is not uncharacteristic of the conservation area as a number of such developments are already located in close proximity to the subject site. In his view the proposal's street elevation directly addresses the street and creates a domestic scale which is broken down by a mixture of materials and textures, with a projecting bay and with a lower verandah roof. 52. The proposal complies with the existing controls in LEP 1989. Its street elevation, considered in the whole of the Ben Boyd Road streetscape, is acceptable. However, when the proposal is assessed against the proposed planning controls in draft LEP 2000, it does not achieve compliance. 53. In a certain sense it is academic to assess the proposal against the provisions of the draft LEP, since the proposed zoning for the subject site prohibits new attached housing. This makes the proposal clearly inconsistent with the intent of the draft LEP. As I have said, however, it is accepted that while a high level of certainty attaches to the making of the draft LEP generally in its present form, this certainty does not necessarily extend to the detailed provisions for every site. Consequently, it is necessary to consider whether this proposal will be consistent with the intent of the draft LEP assuming the site is not within the conservation area and the zoning does not prohibit attached housing. Even if this turn of events were to occur, the Court is not satisfied the proposal will be consistent with the form of development that the draft LEP seeks to achieve. 54. Clause 25 of the draft LEP contains controls for attached housing. The aim is to avoid "carriage" development, which this proposal clearly is. The control requires half the dwellings in an attached dwelling development to have their primary frontage and orientation to a road or public place. The proposal has only one of four dwellings oriented to the road. It is not in a form that the makers of the draft LEP envisage as desirable for North Sydney. Subject to the application of State Environmental Planning Policy No. 1, the subject proposal does not comply with the mandatory requirements of cl 25. 55. The form of the proposal is inconsistent with the proposed planning controls in draft LEP 2000. It will detract from the aims of the draft LEP. According to the significant weight that needs to be given to the draft LEP, the application must fail. Impact on 212 Ben Boyd Road and 22 Oaks Avenue 56. The Court heard evidence from Sandra Bullon, who lives at 22 Oaks Avenue, and Brian Travers, who lives at 212 Ben Boyd Road. The two properties are attached and together align the southern boundary of the site. A written objection to the application, prepared on behalf of Ms Bullon and Mr Travers by a planning expert, Mr K Brodie, was submitted to council. 57. The objectors are concerned about being overlooked from the first floor bedroom windows. They are also concerned about loss of sunlight to their northern windows and their private open space. Ms Bullon's only private open space in which she currently enjoys some privacy is her northern courtyard. Mr Travers' open space is in the front setback of his property, to the east of his dwelling. 58. The applicant submitted shadow diagrams showing shadows cast by the proposal at mid-winter. While Mr Chambers does not agree that the shadow diagrams are accurate, they nevertheless provide a fair representation of the likely impact. The proposal will overshadow both properties to the south in the morning at mid-winter. 22 Oaks Avenue will be overshadowed until 11.00am, after which time its northern wall will be in sunlight, so that it will receive sunlight for about four hours between 9.00am and 3.00pm. 212 Ben Boyd Road is located closer to the common boundary. It will receive sunlight only after noon, for about two and a half hours between 9.00am and 3.00pm. 59. Development Control Plan No. 1 requires that adjoining properties receive three hours of sunlight between 9.00am and 3.00pm at mid-winter. The proposal fully meets this requirement for 22 Oaks Avenue, and almost meets it for 212 Ben Boyd Road. In the circumstances of this case, in my opinion this is acceptable. 60. The objectors and the council are also concerned about overlooking. This will occur from the upstairs bedroom windows. This is the inevitable outcome of the form of the proposal that places many windows looking towards neighbours on either side. It is a negative feature that by itself is not determinative. The impact of the proposal on its neighbours is not a reason for refusal. Conclusion 61. The three main criticisms of this proposal are:- (1) it requires demolition of a building which contributes to the Park/Oaks Avenue conservation area; (2) it is in a form which the future planning controls proposed in draft LEP 2000 seek to discourage; (3) its impact on its southern neighbours is unacceptable. 62. The second of these criticisms justifies refusal of the development application and hence the dismissal of the appeal. 63. Commissioner Dr Roseth, who has rendered considerable assistance in the consideration of this matter, agrees with the conclusions. Orders 64. The formal orders of the Court are:- 1. The appeal is dismissed. 2. Development Application No 0290/00 for consent to erect four two bedroom attached dwellings is determined by refusal of consent. 3. The exhibits may be returned. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.