Land and Environment Court of New South Wales CITATION : Modog Pty Ltd v North Sydney Council [2006] NSWLEC 777 APPLICANT Modog Pty Ltd PARTIES : RESPONDENT North Sydney Council FILE NUMBER(S) : 10577 of 2006 CORAM: Hoffman C KEY ISSUES: Development Application :- Parking bays, subdivision pattern, prohibition, drainage, duplexes, landscaping and tree protection, height, loss of backyard space, visual relief North Sydney Local Environmental Plan 2001 North Sydney Development Control Plan 2002 LEGISLATION CITED: State Environmental Planning Policy No. 1 State Environmental Planning Policy No. 55 Local Government Act 1993 DATES OF HEARING: 20-21/11/2006 EX TEMPORE JUDGMENT DATE : 11/21/2006 APPLICANT Ms J Reid, solicitor, SOLICITORS Pike Pike & Fenwick LEGAL REPRESENTATIVES: RESPONDENT Ms H Irish, barrister, With Mr F Tse, solicitor Of: Malleson Stephen Jaques JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 21 November 2006 10577 of 2006 Modog Pty Ltd v North Sydney Council JUDGMENT 1 This is a class 1 appeal No. 10577 of 2006 between Modog Pty Limited and North Sydney Council in regard to a proposed development at Nos. 3 and 5 Lambert Street, Cammeray. The site and locality 2 The site is located at the intersection of Lambert Street and Cammeray Road. Within the dead-end of Lambert Street, outside the site, there are a series of parking bays generally used by residents of Lambert Street. 3 Surrounding uses are residential to the east, west and south amid a small scale retail commercial development to the north across Cammeray Road. To the immediate west and adjacent to the northern part of the site is a two-storey duplex known as Nos. 1A and 1B Lambert Street. Further west are a house and then two small apartment buildings up to the corner with Park Avenue and across that street is a golf course. 4 Adjacent to the west boundary at the rear part of the site is a two-storey duplex with frontage to Fall Road known as No. 4 Fall Road. To the east of the site are two properties. To the northern part is a three-storey apartment building known as 7 Lambert Street. To the rear part is a two-storey apartment building over basement parking known as 18 Grafton Street. To the south on the opposite side of the drainage reserve are detached dwellings known as No. 2 Fall Street and Nos. 14 and 16 Grafton Street. 5 Across Grafton Street to the east is Primrose Park fronting Middle Harbour. 6 The subject site is located on the southern side of Lambert Street, Cammeray, and consists of two lots being Lot 7 in DP15961 and SP14089. The site has a frontage to Lambert Street of 25.9 m, a western boundary of 75 m, an eastern boundary of 58 m and a rear boundary of 32 m to a council drainage reserve and the site has a total area of 1719 sq m. 7 The site falls from its Lambert Street frontage to the rear by approximately 9 m. The steepest portion of the site is in the front third of the site with the remainder being relatively flat. The existing buildings are up near Lambert Street on the upper slopes of the steep portion. 8 On No. 3 Lambert Street the existing development comprises a two-storey dwelling elevated to the rear with two dilapidated buildings at the back near the drainage reserve. 9 Number 5 Lambert Street has the existing development of a three-storey apartment building with garages under. The apartment building contains five two-bedroom apartments and two garages underneath. A concrete parking area at the rear of the garages provides a manoeuvring area and parking for an additional three cars. There are 26 existing trees on site. The drainage reserve 10 The council is the owner of the drainage reserve at the rear of the site and it is designated community land, although it is zoned road under the North Sydney Local Environmental Plan 2001. Apparently the drain was originally a creek taking the stormwater from uphill down to Primrose Park. The creek has been closed in with concrete box culverts and the upper surface of the culvert is used without council consent to access the rear of the site and No. 4 Fall Road. Apparently 18 Grafton Street has a licence to access its basement car park via the drainage reserve. The proposal 11 The proposal is to dissolve the strata plan for the established apartment building and to Torrens Title subdivide the two lots into three. The established apartment building and the existing dwelling are to be put on one new allotment fronting Lambert Street. The other two lots are at the rear. One called Lot 2 is in the middle of the land with a battleaxe driveway to the drainage reserve. The third lot called Lot 3 is at the rear with frontage to the drainage reserve. 12 On these two rear lots are proposed a duplex on each with pedestrian and vehicle access via the drainage reserve to Grafton Street. Each of the three new lots is to be separately strata subdivided for the development contained on it. The witnesses 13 Evidence was heard from the respondent's witnesses: + Mr Mossmenear, senior town planner of the council + Mr Wise of 1B Lambert Street, objector and + Mr Sandford of Unit 2, 7 Lambert Street. objector 14 A number of other objections were in evidence by persons who did not come to Court. 15 Evidence was heard from the applicant's witnesses: + Mr P N Castor, arborist and + Ms K Gordon, town planner 16 The parties had agreed that the Court should appoint an expert arborist Mr I J English and a civil engineer Mr C Potter to prepare reports and give evidence. 17 At the hearing Mr Potter was not called. His evidence largely went to the structural sufficiency of the concrete box culverts to carry vehicle loadings including construction trucks. It had been agreed that this could be dealt with via conditions taking into account his recommendations. The statutes and the issues 18 Statutory controls applicable are the North Sydney Local Environmental Plan 2001. The site is located in the Residential A2 zone. The relevant clauses in the Local Environmental Plan are: + the general aims of the plan, cl 2, + specific aims of the plan, cl 3, + consistency with the aims and objectives and desired character cl 14, + subdivision cl 15, + building height cl 17, + building height plane cl 18, + landscaped area cl 20, + duplexes and dwelling houses cl 22 and + apartment building revision cl 26. 19 The North Sydney Development Control Plan 2002 applies, especially ss 7 and 9 including the area character statement for the precinct of Bennelong-North Cremorne. 20 The State Environmental Planning Policy No. 55 applies to the proposed development and a State Environmental Planning Policy No. 1 objection in regard to a building height plane non-compliance was also required. 21 The issues in the case were: Issue 1 : Subdivision pattern 1 The proposed subdivision results in a subdivision pattern which is inconsistent with the character of the neighbourhood. The characteristic subdivision pattern of the neighbourhood is lots with road frontage and no land-locked sites, and consistent narrow frontages to Lambert Street with deep side boundaries. In the context of the characteristic subdivision pattern of the neighbourhood, the proposed subdivision pattern: (a) is inconsistent in terms of lot sizes, orientation and shape; (b) does not result in a grid like subdivision pattern; and (c) does not result in regular sized allotments. Particulars Clause 15(1)(a) and 16 of the North Sydney Local Environmental Plan 2001 ("NSLEP') Section 7(3)(d)(i) of the North Sydney Development Control Plan 2002 Section 7.7(f) of Area 7 North Cremorne of the North Sydney Development Control Plan 2002 Area Character Statements Prohibition Issue 2: Deleted Issue 3: The configuration of buildings on proposed Lot I is contrary to the planning intent of clause 22(2) of the NSLEP. Clause 22 would prohibit the erection of both the dwelling house and residential flat building on Lot 1 and will operate in the future to prohibit alterations and additions to the dwelling house which amount to the erection of a building within the meaning of that clause. Particulars Clause 16 and 22(2) of the North Sydney Local Environmental Plan 2001 Drainage Reserve Issue 4: The only means of access to the site is to use the drainage reserve at the rear. The Respondent contends that the drainage reserve should not be used because: (a) the Applicant has not demonstrated that the drainage reserve is structurally capable of supporting an increase in traffic as a result of the two additional duplexes, such as private vehicles, removalist trucks and garbage trucks, and use by construction vehicles during the demolition, excavation and construction on the site; (b) the drainage reserve is currently community land and the Respondent cannot legally grant a right of way over community land nor should it constrain the future use of the community land by permitting the land to be used as the only legal and physical access to Lots 2 and 3; (c) Deleted. Particulars Chapter 6 Part 2 Division 1 of the Local Government Act 1993 . Section 7.4(q) of the North Sydney Development Control Plan 2002 Duplexes Issue 5 : The proposal to build a two-storey duplex on each of the two new lots at the rear of the site: (a) Deleted. (b) is inconsistent with the character of the area as the duplexes are sited within traditional rear yard space; and (c) is of poor design and site development because: i) the rear duplex is within the rear setback of 10 metres for the area; ii) solar access to the living areas of the rear duplex is inadequate; and iii) open space in Lot 3 is broken up into fragmented areas that are unsuitable. Particulars: Clause 16 of the North Sydney Local Environmental Plan 2001 , Section 7.2(f), 7.3(e) and (f) and 7.4(k)(iii) of the North Sydney Development Control Plan 2002 , Section 7.7(g) of Area 7 North Cremorne of the North Sydney Development Control Plan 2002 Area Character Statements Landscaping and Tree Protection Issue 6 : The loss of trees on the site has an unacceptable effect on the amenity of the area. Issue 7 : The rear duplex and access driveway are too close to both the trees along the eastern boundary at the rear, that is, two wild plums and three Italian Cypress trees and the Magenta Cherry tree, all of which are identified for retention. The development fails to ensure that those trees are retained and protected during the demolition excavation and construction on the site. Particulars: Clause 6 and 20(1) of the North Sydney Local Environmental Plan 2001 Section 7.4 m and mm of the Development Control Plan 2002 Height Issue 8 : Deleted. Issue 9: The development breaches the building height plane control and the Applicant's SEPP 1 objection should not be upheld because: (a) for Lot 1, the balconies of the established apartment building have an unacceptable impact on the privacy of dwellings on the same lot and adjoining lots. The Applicant's SEPP 1 objection fails to address the breaches of the building height plane control with respect to Lot 1; (b) for Lot 3, the siting of the duplex is inappropriate for the reasons outlined in Issues 5 and 7. Particulars State Environmental Planning Policy No. 1 - Development Standards ("SEPP 1') Clause 17 and 18 of the North Sydney Local Environmental Plan 2001 Section 7.2(i) and 7.3(h) of the North Sydney Development Control Plan 2002 Access and Parking Issue 10: Deleted. The evidence 22 The plans in Exhibit F were found during the hearing to be not to scale and an updated set was substituted. The floor levels of the duplexes on the rear two lots were also raised 150 mm. It was not such a change that required re-exhibition of the proposal for public comment. 23 Mr Wise said in summary that his duplex had retained a substantial backyard and he had expected the adjoining properties to do the same. Proposed Lots 2 and 3 would put two 2-storey duplexes where the backyard is now. He was concerned about building bulk and proximity and loss of view, as he called it, to large trees on the subject land. He was also concerned about privacy and noise from activity in the duplex on Lot 2 whose courtyard is immediately over the fence from his master bedroom and his own living room balcony and deck. There could be mutual disturbance. 24 Mr Sandford's concerns were partly about privacy from proposed new balconies on the flats on the site overlooking his living room/dining room windows but the balconies have been deleted by the applicant. His other concern was privacy from an upper floor living room and deck of the duplex on Lot 2. 25 His other concerns, as were most of the objectors, were about the proposal being out of character with the Bennelong Precinct Statement and Zone Residential 2A residential objectives and the loss of backyard space and visual relief considered typical of the locality. 26 Ms Gordon was of the opinion that areas in the Bennelong Precinct away from the immediate locality of the site might have that conventional lot and house layout but the city block of Lambert, Fall, Grafton, and Park Avenue does not. The creek or drain through the locality and the angle of the streets one to another resulting from the topography had produced smaller odd-shaped lots that in some cases had very little backyard and the proposal fitted that character. 27 Returning to Mr Wise, near his living room balcony and rear deck is a large Crepe Myrtle tree on the subject site and it is proposed to remain. Through its branches one could see a Norfolk Pine, a palm tree, several pencil pines a Jacaranda and several wild plum trees and a lilly pilly all quite large and mature from the subject site. 28 The arborist said the Norfolk Pine was only young and would get much larger. It is located at about the common boundary of Lots 2 and 3 and is proposed to be removed. Most of the pencil pines are overly mature and showing signs of damage and infestation such that Mr English accepts their removal. Some of the wild plum trees and the palms are to go and he accepts that. 29 He was concerned about the driveway which is proposed from the drainage reserve to serve all three allotments would result in compaction of the roots of some of the existing trees intended to be retained. The applicant however produced documents from Patterson and Britton Engineers that said that the driveway could be constructed so as not to compact the ground. During submissions the applicant indicated that the driveway could be built on piers if necessary to avoid compaction. 30 Mr English would prefer to keep the Norfolk Pine as it is a very healthy and large specimen. It is not listed as a significant tree on the council register. He did acknowledge it does inhibit any likely development on the site and in view of its future growth potential is not suitable for being close to a building or in a small courtyard. The tree he is particularly keen to save is the large and healthy Lilly pilly called tree 14, adjacent to the drainage reserve in Lot 3. Mr Castor said that it can be saved by building the duplex on a cantilever concrete slab above tree roots and using other building design features and controls during construction. 31 Mr English is very concerned about a number of aspects, however. He said: "There have been no amendments to the proposal that satisfy the author that this proposal complies with the objectives of the Local Environmental Plan with regard to the preservation of tree 14. Although I agree by design dwelling 3 is intended to reduce impacts on tree 14. To ensure the impacts arising from construction on tree 14 are minimised considerable protection during construction and after construction care is required to avoid adverse impacts and its decline. It is a fully mature established rainforest species estimated to be around eighty (80) years old. Construction of dwelling 3 and the driveway proposed on dwelling 3 are in close proximity to the tree on three sides. An elevated building footprint shows walls at 3.2 m from the centre of the trunk on its western side, 3.2 m on its northern side and the driveway at 3.4 m on its eastern side covering a significant portion of the tree's natural absorption zone. DA38 indicates partially covered structures being a deck approaching to 1.6 m from the centre of the tree on its northern side". 32 I note the trunk as seen on the site is about 1 m diameter, so the building is actually at about one metre from the trunk at it's closest point. 33 It is Mr English's opinion that the location of dwelling 3 will adversely affect the ability of the proposal to adequately protect and preserve tree 14 through the construction period considering the amount of concrete formwork required at close proximity to the tree. 34 The occupants of this dwelling are likely to justifiably require significant and further pruning of its crown on its northern and western sides due to fruit and leaf drop, and overshadowing and staining caused by scale commonly found in this species. Lilly Pilly trees grow copious amounts of berries that fall on ripening. 35 Because of the overshadowing and effects of the tree and berries on the outdoor amenity areas, it is unlikely to receive any ongoing maintenance, irrigation and mulching required to offset the impacts arising from having a significant portion of its root system covered by a building footprint. 36 With regard to the location and design of duplex 3, Mr English notes: "(a) one misplaced utility strength soil compaction or chemical degradation of the soil profile will undo any tree protection benefits arising from the cantilever design of duplex 3, (b) the close proximity of duplex 3 to tree 14 requires extraordinary conditions that impose significant restrictions on materials, handling, excavation and construction process and increasing the overall cost of construction, (c) to address this concern as best that can under the current design a tree management plan must be prepared by an arborist with a construction works method statement prepared by the principal contractor in consultation with an arborist during implementation, and (d) the works method statement prepared by the principal contractor must be certified by the arborist prior to issue of a construction certificate." 37 With regard to these factors Mr English said the location of duplex 3 is unacceptably close to Tree 14. The jacaranda is to be removed and Mr English accepted that as it is a damaged example of that tree. 38 Mr Mossmenear is also concerned about the location of the duplex on Lot 3. He notes it is setback just over 2 m from the drainage reserve boundary with high fences on the drain boundary. Under the Development Control Plan Precinct Controls rear setbacks, and he says on the subject site the drainage reserve is the rear, the normal 10 m requirements should apply and that would protect the Lilly pilly Tree 14 and overcome the practical concerns of Mr English. 39 I note on the site view the drip line of Tree 14 was measured in the west and north directions and is about 7 m from the trunk in both directions. It would overhang both duplex units on Lot 3 to almost the ridgeline of their roofs. Mr English's evidence carries considerable weight. 40 Ms Gordon for her part, supported Mr Castor and the proposal by justifying the small setback to the drainage reserve by averaging the setbacks of No. 4 Fall Road and No. 18 Grafton Street to the reserve and noting parts of the houses on Nos. 14 and 16 Grafton also come close to the drainage reserve boundary. 41 The Development Control Plan setbacks to street boundaries are set at 3 m minimum and 1 m to side boundaries. Reading the objectives of the Zone A2 Residential and the explanatory note in the Local Environmental Plan and the Bennelong Character Statement in the Development Control Plan especially setbacks, form, massing and scale and the implications for density, it is clear that the desired future character sought by the statute and the controls is a house and garden neighbourhood with front yard, a building and then a backyard. 42 On this 1700 sq m site, Ms Gordon compared the proposal with its 10 dwellings to the nearby and adjoining apartments on small lots to say it would fit into that character. Whilst it may fit that character, it is a character and density that the desired future character is seeking to eliminate. 43 There is of course the drainage reserve issue to consider. Any decision in favour of this application would have to be in the nature of a preliminary finding so that the applicant could then see if the Court in Class 3 proceedings would grant a licence or lease for access to the proposed Lots 2 and 3 over the drain. 44 For all practical purposes if that is to occur then the drainage reserve becomes de facto the street frontage of Lot 3 at least. The proposal does not even meet the minimum street front setback, and does so at the cost of native vegetation that should be retained with enough space around it so that it and the occupants of any dwellings can enjoy coexistence without the obvious conflicts Mr English foresees in his evidence. 45 Mr Mossmenear has other concerns about the units in Lot 3 including the fragmentation of its private open space areas being spaces of less than 4 m wide and less than the 36 sq m minimum area. 46 Ms Gordon had included areas less than 4 m wide in her calculation of open space and also had indicated that in some cases the units had two open space areas which in summary should meet the control requirements. 47 Whilst Mr Mossmenear was prepared to accept that tables and chairs could be put in the spaces provided, it seemed to me that on that indicator alone the units are tightly fitted onto their allotments. The planter strips along each courtyard boundary that are needed to soften the architecture and fences further reduce the paved areas for any tables and chairs to 1.8 m wide as measured on the landscape plans. That is a tight fit in the courtyards too. 48 Mr Mossmenear was also concerned that Lot 2 is a battleaxe lot in effect. That is also not in character with the Bennelong precinct statement for the zone controls. Neither proposed Lots 2 or 3 have a 10 m boundary setback off any boundary to create the building separation and green space of a "backyard" obviously intended. 49 The non-compliance with the building height plane statute and the need for a State Environmental Planning Policy No. 1 objection are further evidence of that. 50 Instead of using a floor space ratio and maximum building footprint control, the fact that the density controls are only via the 450 sq m minimum lot size combined with the landscaped area and the building height plane does not mean the other objectives and controls can be overridden. In fact it adds to their importance as a suite of controls that produces the end result intended by the legislation. 51 This site has constraints, especially proposed Lots 2 and 3, by the nature of no legal street frontage, substantial native vegetation the lilly pilly of which plus some existing boundary trees should be preserved, older higher density development in close proximity, existing older higher density development on the site, and building and private open space and siting design features that render the proposal unacceptable. 52 The proposal is clearly an overdevelopment that has not had adequate regard to the applicable statutes and controls and the site constraints and should not be approved. Therefore the orders of the Court are: 1. The appeal is dismissed. 2. The exhibits are returned to the parties except Exhibits 1 tabs 1 and 2, and Exhibits 3, 5, 6, C and F. ___________________ K G Hoffman Commissioner of the Court Rjs/ljr 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.