Land and Environment Court of New South Wales CITATION : Pearson R v North Sydney Council [2004] NSWLEC 137 revised - 16/06/2004 APPLICANT Richard Pearson PARTIES : RESPONDENT North Sydney Council FILE NUMBER(S) : 10894(2) of 2003 CORAM: Bly C KEY ISSUES: Development Application :- Amenity - impacts including loss of views and outlook and loss of daylight - impacts on heritage significance of dwelling and conservation area Environmental Planning and Assessment Act; s 96 LEGISLATION CITED: North Sydney Local Environmental Plan 2001 North Sydney Development Control Plan 2002 State Environmental Planning Policy No. 1 CASES CITED: DATES OF HEARING: 02- 03/03/2004 EX TEMPORE 03/03/2004 JUDGMENT DATE : APPLICANT Mr S Brockwell, barrister SOLICITORS Peter Prior & Co. LEGAL REPRESENTATIVES: RESPONDENT Ms H Irish, barrister SOLICITORS Mallesons Stephen Jaques JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10894(2) of 2003 Bly C 3 March 2004 Richard Pearson Applicant v North Sydney Council Respondent Judgment 1. On 24 June 2002, North Sydney Council granted conditional development consent permitting extensive alterations and additions to the existing heritage listed dwelling house at No. 15 Kareela Road, Cremorne Point. This consent was granted following a number of changes to the proposal. 2. On 11 March 2003, the applicant in these proceedings lodged an application to modify the existing consent under s 96 of the Environmental Planning and Assessment Act 1979. The modifications mainly involved the removal of an existing dressing room associated with the master bedroom and replacing it with a larger study. This study would be enclosed with a gable ended roof structure projecting to the northeast, partly from the existing main roof of the building and mainly from the gable end of the approved extended roof form. This extension is essentially the same structure which was omitted from the original proposal to facilitate the approval. 3. The site is zoned Residential G under North Sydney Local Environmental Plan 2001 ("the LEP"), in which zone the proposal is permissible with development consent. The site is located within a conservation area and in the vicinity of a heritage item. The existing house is a heritage item. 4. Clause 17(4) of the LEP relevantly sets a maximum building height of 8.5 m. The objective of this standard relevant to this application is to promote the retention of and, if appropriate, sharing of existing views. An associated objective for Cremorne Point is to minimise the loss of significant views from surrounding properties, roads and public places. Clauses 48, 49 and 50 of the LEP deal with heritage items, conservation areas and development in the vicinity of heritage items. In essence, these provisions seek to protect the heritage significance of the item concerned, prevent adverse impacts on the character and heritage significance of the conservation area and nearby heritage items. These matters have been dealt with in detail by the heritage experts. 5. Also relevant to the application is North Sydney Development Control Plan 2002. This DCP contains provisions relating to the protection of views and outlook and view sharing from private property, the provision of building setbacks which are responsive to adjoining properties, the design and positioning of dormers, and the massing, form and scale of heritage items. Again these matters have been dealt with in detail by the experts. 6. The application was advertised on several occasions as a result of amendments to the plans. Objections were received from the Cremorne Point Precinct Committee and from or on behalf of a number of residents from the surrounding area. Expressed concerns mainly relate to amenity impacts on neighbouring properties including loss of views, loss of daylight and air, excessive building height, floor space, bulk and scale, and contravention of council's codes. 7. Of particular relevance was the objection from Mr P Riordan of No. 17 Kareela Road, who gave evidence at the hearing. His concerns relate to loss of harbour views, reduced access to daylight, insufficient setbacks from the boundary, and excessive bulk and scale. He also contended that the originally approved plans were a compromise that should be maintained. Number 17 was inspected by the Court during the site inspection. 8. The appeal was lodged on the basis of the deemed refusal of the application which was subsequently refused by the council for reasons relating to adverse amenity impacts on the neighbour to the north, exceedances of the height control in cl 17 of the LEP and consequential loss of views, and the proposal not being substantially the same as the development approved by the council in the first instance. 9. On behalf of the respondent council, expert evidence was given by: - Mr S Davies, heritage consultant, - Mr G Mossemenear, town planner. 10 . On behalf of the applicant, expert evidence was given by: - Mr L Tropman, heritage architect, - Mrs L Sheridan, town planner. 11 . The Court and the applicant were provided with a Statement of Issues containing seven separate issues. The first of these issues involves the question of whether, pursuant to s 96 of the Act, the proposed development to which the consent as modified relates is substantially the same development as that for which consent was originally granted. This issue was decided in relation to the proposal (as it then was) in the affirmative by me, in a judgment dated 17 November 2003. Since that time, the application has been amended by the lowering of the roof ridge above the study by 300 mm. In this regard I continue to be satisfied that the proposed development to which the consent as modified would relate is substantially the same development as that for which consent was originally granted. 12 . The remaining issues are, in essence, twofold. First, whether the proposal would have adverse amenity impacts on the adjoining property at No. 17 in terms of loss of views and outlook, and reduced access to daylight. The second issue is whether the proposal would have an adverse impact on the heritage significance of the existing building and on the conservation area. 13 . Dealing firstly with the heritage issue, I was assisted by the preparation by the two heritage experts of a joint statement which identifies a number of areas of agreement and of disagreement. 14 . Mr Davies accepted that the form and detail of the structure associated with the extended study was acceptable. However, in essence, its problem is that it is too large in the context of the size of the gable ended roof structure associated with existing bedroom 1. This is because there is not enough difference in scale between these two gable ended structures so as to be consistent with the traditional hierarchy of scale associated with the Federation Queen Anne style of domestic architecture. At its proposed scale, the structure is not well mannered and will result in a confusing relationship with the existing structure. It needs to be lower and narrower. 15 . The existing bedroom 1 is 3.9 m wide and the study is to be 3.6 m wide. The gable above the study is to be 300 mm lower than the gable associated with bedroom one. It is also to be noted that the gable above the study is to be about 1.3 m below the approved gable height of the main roof from which it projects. 16 . Mr Tropman was of the opinion that the proposed changes, including those included in this application, need to be considered in the light of the history of changes to this building over a long period of time. The proposed changes, he explained, will bring this eclectic, somewhat awkward building to a more characteristic form of Federation building. 17 . The proposed gable ended structure associated with the study will be traditional in form, and when viewed from the east and northeast will be subservient to the main building, and by comparison with the bedroom 1 structure will be recessive. He was of the opinion that it did not need to be reduced in size. Moreover, in terms of construction, ceiling height and floor planning, any such reduction would be difficult and undesirable. 18 . It is not entirely irrelevant here to note that the two town planners who gave evidence did not find any planning problem with the scale of the structure. 19 . I accept and find no problem with the fact that the changes now approved by the council to this building, together with the additional changes now proposed, will significantly alter the appearance of this building by comparison with its original form. In the heritage sense and looking at the life of many buildings which attract heritage significance, extensive changes over time are not unknown. I have no reason to doubt Mr Tropman's contention in this context that the changes will have a positive result. 20 . Whilst I understand Mr Davies' contention that there should be a hierarchy of scale between the gable ends, I have not been persuaded that in this case the failure to provide a conspicuous difference in scale between the two should be determinative of the application. The position from which the two proposed gables, particularly in terms of their relationship to one another, will be most conspicuous is illustrated by Mr Davies' photographs in his report. In this context and taking into account the actual separation between the two gable ends, the differing setbacks from the reserve and their differences in size, albeit small, and their orientation, I am satisfied that this relationship will, in the heritage sense, be satisfactory. I therefore agree that the altered building will continue to present as a characteristic Federation building and in turn will be appropriate in the conservation area. 21 . Turning now to the aspects of amenity, particularly those involving No. 17, in this regard I was assisted by the joint conference report prepared by Mr Mossemenear and Mrs Sheridan. In this regard it is relevant to note that the overall height within the context of adjoining buildings was not an issue and that the planning issues that needed to be determined relate to impacts involving loss of views and loss of natural light for this adjoining property. 22 . Dealing firstly with loss of views, such losses are from the middle floor level of No. 17. This floor is occupied by a living room, dining room, kitchen and meals area, with the expansive water views from the living room an dining room being unaffected by the proposal. However, the kitchen and meals area will be variously affected. Mr Riordan was especially concerned at these view losses because the kitchen and meals area are heavily used. In particular, Mrs Riordan spends a considerable amount of time in the kitchen in conjunction with her occupation as a freelance food consultant. 23 . Mr Mossemenear was of the opinion that the proposal did not meet the objectives of the LEP or the DCP because significant views from the kitchen and meals area would be lost. 24 . Mrs Sheridan did not agree, arguing that in the overall context of available views, the reduction of water views was not significant. In her analysis she pointed out that none of the primary views of the harbour from this floor would be lost. The views from the kitchen windows and the meals room windows are secondary or tertiary views because they are at an oblique angle from side windows and are nowhere near as expansive as other available views. She accepted that the water views from the meals room would be lost, as would some of the water views from the kitchen, but in the circumstances the loss of these views would neither be significant nor material. 25 . In relation to view loss, I have been persuaded by the evidence of Mrs Sheridan. Whilst there will clearly be a loss of views, I cannot accept that in the total context of available views from No. 17 that the extent of view loss should be determinative of the application. Moreover, it cannot be expected that windows on a side boundary which overlook a neighbouring property and where those windows are effectively at the rear of the building with respect to that outlook, can have their views maintained. In other words, in this case, as the viewer moves from east to west it becomes increasingly unreasonable to expect that views be preserved. 26 . It should also be noted that the subject building and particularly the proposal is set back well behind the eastern building line of No. 17. 27 . In relation to the lower floor bedrooms of No. 17 which face the subject property, there is no doubt that these rooms will suffer from a loss of daylight as a result of the approved proposal and this will be worsened somewhat by the subject proposal itself. Other rooms in No. 17 are also affected by the approved proposal. Mr Mossemenear believed that the proposal should be amended so as not to have such an impact on these bedrooms, suggesting in part that additional setbacks would be required. 28 . Mrs Sheridan accepted that there would be some loss of daylight to these bedrooms but did not accept that it was significant or critical in this regard. She explained that the setback requirements in the DCP for this side boundary would be 1.5 m, whereas the proposal relevantly had a two metre setback. 29 . I have again been persuaded by the evidence of Mrs Sheridan that the loss of daylight to these bedrooms should not be determinative of the application, especially taking into account the size of the building already approved by the council and the relatively small nature of the extension, and despite its proposed height. The fact that there are other rooms already likely to be affected by the approved proposal does not affect my conclusion in this regard, which takes particularly into account the total 3.5 m separation between the buildings. 30 . In relation to the building height development standard in cl 17, I accept that there is a degree of ambiguity in the definition of height, particularly the reference to the level of the lowest habitable floor. Despite this, I am satisfied that by referring to a habitable floor, the definition intends that the whole floor rather than a particular room on that floor needs to be taken into consideration. In other words, even though there may be non-habitable rooms on that floor, this does not mean that the floor itself cannot be described as a habitable floor. In this case I am satisfied that the proposed basement floor level is indeed a habitable floor and the bathroom, despite being a non-habitable room for the purposes of the Building Code of Australia, is part of that floor. 31 . The definition also refers to a distance measured vertically from any point on the building to the lowest habitable floor and in this case, because the basement floor is lower than the existing ground level as defined, that is the relevant point from which to take the measurement. This approach results in a height exceedance of just over 2 m. 32 . On the assumption that this might be the case, the applicant has provided an objection pursuant to State Environmental Planning Policy No. 1 , Development Standards . This objection argues that the proposed development is consistent with the objectives of the height control for a number of reasons. First, it is well below the height established by the two adjoining buildings. I accept that this is an appropriate approach to take, even though these adjoining buildings may not be characteristic buildings for the purposes of the LEP and DCP, and particularly given that there is no specified characteristic building height in the DCP. Also in terms of its presentation to the east, in the context of the two adjoining buildings, I accept that the height of the proposal, even taking into account the already approved development, will be entirely satisfactory and will maintain the scale and characteristic height of the development in the locality and indeed the neighbourhood. 33 . The objection also points out that whilst there will be some loss of views and reduced daylight for the adjoining property, the relevant objectives of the standard will still be achieved, and given the conclusions that I have already reached in relation to these matters, I accept this conclusion. 34 . In the circumstances, I am satisfied that the objection appropriately argues that the variation to the height standard can be justified and would not be inconsistent with the objectives of the standard. Strict compliance would be unreasonable or unnecessary in the circumstances of the case. 35 . Therefore the orders of the Court are: 1. The appeal is upheld 2. The existing development consent (DA1056/2) for alterations and additions to the existing dwelling house at 15 Kareela Road, Cremorne Point, is amended by the deletion of condition 1A and its replacement with:- 1A. The development being carried out in accordance with drawings numbered DA00C – DA02C, DA04C, DA05C, DA08C, DA10C, DA12C-DA18C dated 14 March 2002, drawn by Conybearne Morrison & Partners, and received by council on 20 March 2002 and drawings numbered DA03C, DA06C, DA07C, DA09C and DA11C dated 10 May 2002, drawn by Conybearne Morrison & Partners, and received by council on 14 May 2002, as amended by drawings numbered DA02C, DA03E, DA04C, DA05D, DA06D, DA07D, DA08C, DA09D, DA10D, DA11D and DA12C, dated February 2004, drawn by Conybearne Morrison & Partners, and received by Council on 4 February 2004, except where amended by the following conditions. 3. Exhibits 10 and A are retained. ___________ T A Bly Commissioner of the Court rjs DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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