Land and Environment Court of New South Wales CITATION : Australian Enterprise Holdings v North Sydney Council [2006] NSWLEC 207 Applicant: Australian Enterprise Holdings Pty Ltd PARTIES : Respondent: North Sydney Council FILE NUMBER(S) : 11216 of 2005 CORAM: Roseth SC KEY ISSUES: Development Application :- variation of building height development standard DATES OF HEARING: 12/04/2006 and 13/04/2006 DATE OF JUDGMENT: 05/09/2006 Applicant: LEGAL REPRESENTATIVES: Mr M Craig, QC instructed by Mr A Hudson of Wilshire Webb Respondent: Ms H Irish, barrister instructed by Ms L Segal of Mallesons Stephen Jaques JUDGMENT: - 1 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Roseth SC 9 May 2006 11216 of 2005 Australan Enterprise Holdings Pty Ltd v North Sydney Council JUDGMENT 1 Senior Commissioner: This is an appeal against the deemed refusal by North Sydney Council of a development application to demolish the existing church and erect a four storey residential flat building containing five dwelling over basement parking on lot A DP 449796, known as 42A Cremorne Road, Cremorne. The site 2 The site is on the western side of Cremorne Road, about half way along the crest of the peninsula. It is L-shaped, with a boundary of 15m to Cremorne Road. It has a cross-fall of about 7m. On the site stands an Anglican church that was decommissioned in 2001. The site is within the Cremorne Point Conservation Area. 3 Adjoining to the south is the former rectory, a two-to-three storey building, which is to be used as a single dwelling house. It is listed as a contributory item to the Cremorne Point Conservation Area. Adjoining to the north is a three-to-four storey L-shaped apartment building, known as 44 Cremorne Road. To the west, on the opposite side of Cremorne Lane, is a three-storey apartment building. The area around has a preponderance of attractive early 20th century residential buildings, among which inter-War and post-War apartment buildings are interspersed. The proposal 4 The applicant proposes to demolish the existing church and erect an apartment building with four residential levels containing five dwellings over basement parking. 5 The applicant lodged the development application in December 2004 and amended plans in March and July 2005. The council received 14 submissions after the first notification, 16 submissions after the second; and seven submissions after the third. On 17 October 2005 the council received a report prepared by its planning staff recommending that the proposal be approved subject to conditions. The council did not accept the recommendation and deferred the determination of the application. The applicant lodged the appeal in October 2005. At the time of hearing the council had not made a decision. Relevant planning controls 6 Local Environmental Plan 2001 (the LEP) zones this site Special Uses (Church), a zone that permits residential flat buildings. A draft Local Environmental Plan (Amendment 23) (the draft LEP) seeks to rezone the site from Special Uses to Residential G, which is the zoning all around the site. The draft LEP contains a savings clause that saves this application. Development Control Plan 2002 (the DCP) also applies. State Environmental Planning Policy 65 – Design Quality of Residential Flat Development (SEPP 65) applies to all residential flat buildings of three or more storeys. The Policy contains design principles, among them a principle on Context. The proposal's relationship to its context is among the issues of the case. 7 The applicant seeks to vary the height control in the LEP by an Objection under State Environmental Planning Policy 1 – Variation of Development Standards (SEPP 1). A draft SEPP aimed at replacing SEPP 1 has been on exhibition since 2004. The Objection deals also with the draft SEPP. The issues 8 The council submitted a Statement of Issues containing eleven issues of which it pressed nine. However, since several of them state the same idea in different ways, the council's advocate, Ms H Irish, reduced them to six, ie: · Height and whether the applicant's SEPP 1 objection to the height development standard was justified; · Urban design, bulk and scale and appropriateness in the context of the Conservation Area; · Reduction of the building's front projection; · Side setbacks; · Privacy; and · Excavation. The experts 9 The parties had agreed on Mr A Tzannes, an architect and urban designer as the joint expert, appointed by the Court. The applicant's town planning expert was Mr R Player. The council's town planning expert was Mr H Sanders, while its urban design expert was Professor P Webber. The objectors' concerns 10 The Court heard the evidence of eight objectors. Ms J Allpass, who lives at 1/44 Cremorne Road and is the secretary of the owners' corporation of No 44, said that the proposal would impact on 15 families, three of them badly. The three worse affected apartments were Units 11. 13 and 15. The impacts arises in the following way: · The proposal is closer to the common boundary than the existing church. · There are 22 windows facing No 44, causing problems of overlooking and noise. · The extent to which proposal exceeds the maximum height of 8.5m increases the impact. · No 44 should not be penalised because it is considered an unattractive building. 11 I deal with these concerns in turn. I do not agree that the worse impact falls on Units 11, 13 and 15. Ms J Shaw, who owns No 15, said that her visual and aural privacy would be shattered. Unit 15, and the other two apartments below it, have a balcony of which the narrow edge is close to the common boundary. However, they have no windows facing towards the common boundary. The closest living room or kitchen window in the proposal from which overlooking would be possible is about 13m removed from the balconies. 12 As regards the proposal's side setback, it is about 300mm closer to the common boundary than the existing church. Three of the experts (Professor Webber, Mr Tzannes and Mr Player) considered this to be appropriate on the basis that the living room windows had louvres to reduce overlooking, the only wall of No 44 close to the boundary was a blank wall, and the main part of the building, whose windows and balconies faced the proposal, had a setback of 14m from the common boundary. The fourth expert, Mr Sanders suggested increasing the proposal's setback by 0.5 or 1m. The additional 0.5m (or even 1m) suggested by Mr Sanders would make little difference to visual or aural privacy. 13 Mr A Sallway, who lives in Unit 7 of No 44, said that his main concern was the loss of the city view from his living room and balcony. The loss was due to the proposal's exceedence of the height standard. All the experts agreed that Unit 7 would lose its city views and that the loss was unacceptable. The applicant accepted amendments to the proposal will ensure that the city views from Unit 7 are maintained, and possibly enhanced. 14 Mr S Overton, who lives in Unit 3 of No 44, said that he was concerned that the proposed building will be closer to No 44 and the street. In addition he objected to the loss of Harbour view across the front of the proposal. The view was not visible now but would be when the vegetation loses its leaves. None of the experts considered that the impact on Unit 3 was major. 15 I hasten to add that I understand why the residents of No 44 are upset that the amenity they now enjoy from the church (a building that had been in use only one day a week and more recently is out of use altogether) will be reduced by the construction of an apartment building that is in constant use. However, my task is not to determine whether the existing amenity of No 44 will be retained. It certainly will not. My task is to determine whether the proposal's impact on No 44, in the context of an apartment building in the Cremorne Point area, is reasonable. 16 The question of the proposal's exceeding the height limit of 8.5m is the main issue in the case and is discussed below. As concerns Ms Allpass's fear that No 44 is penalised because it is an unattractive building, this is certainly not the case. On the contrary, all the experts gave major weight to what they considered to be the principal impact, namely the reduction of views from Unit No 7. As mentioned above, the amendments overcome this problem. 17 Mr P Berkemeier, who lives at 67 Milson Road, said that the existing through-site link from Cremorne Road to Milson Road should be maintained. I note that this is not a condition of sale imposed by the Church. In the absence of any requirement in a planning instrument, the Court cannot require the applicant to provide such a link on a site accommodating a private apartment building. 18 Ms R Weir, who lives at 5 Hodgson Avenue, said that she regretted that the new development did not retain the community meeting room provided by the Church. Mr G Harris, who lives at 69 Cremorne Road, said that the variation of building height is not justified. 19 Ms G Resnekov, who lives at 61 Milson Road, said that she was concerned about overlooking and noise. The separation between the closest window in the proposal and her courtyard is over 20m. I do not think that her concern is justified. The height variation 20 The proposal's breach of the 8.5-height standard was the major issue in the case. The applicant submitted an Objection under SEPP 1 to the height standard. Three of the experts, Professor Webber, Mr Tzannes and Mr Player, were satisfied that the Objection was well founded. Mr Sanders dissented. In his opinion, the top level of the building should be removed in its entirety. 21 The applicant's Objection was prepared by Mr Player. Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46 (at paragraph 26) provides a basis on which such objections should be assessed. In applying the above-mentioned judgment, it seems to me that SEPP 1 requires answers to a number of questions (not necessarily in the following order). First, is the planning control in question a development standard? Second, what is the underlying object or purpose of the standard? Third, is compliance with the development standard consistent with the aims of the Policy, and in particular does compliance with the development standard tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EP&A Act? Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? Fifth, is the objection is well founded? In relation to the fourth question, it seems to me that one must also look to see whether a development which complies with the development standard is unreasonable or unnecessary, as noted by Cripps J in the Hooker Corporation case. 22 There was no dispute that the height standard of 8.5m is a development standard. As regards the second question, Mr Player's objection sets out the objectives of the height standard in cl 17(1) and (2) of the LEP. Under the third question Mr Player tests whether the proposal complies with the objectives of the standard. He concludes that it does; hence compliance with the standard is unnecessary. 23 The relevant objectives are those in cll 17(1)(a)(ii), 17(1)(c) and 17(2)(c). Clause 17(1)(a)(ii) aims to keep new buildings at the same or similar height as the characteristic building height. Clause 17(1)(c) promotes the retention of existing views. Clause 17(2)(c) aims to keep wall heights of new buildings no higher that the wall heights of surrounding contributory items. It was common ground that the revised plans retained the city views of Unit 7 (and possibly enhanced it) and that there were no other major views affected. It was also common ground that the revised plans related well to the Rectory, which is a contributory item. The objective about which the experts remained a dispute was that in cl 17(a)(ii) dealing with characteristic building height. The current version of the LEP has repealed the definition of that term; however, I give it its ordinary meaning as the preponderant height in that part of a street that is visible form the site. 24 The dispute among the experts was between Mr Sanders, on the one hand, and Mr Tzannes, Professor Webber and Mr Player, on the other. Mr Sanders thought that the building should comply with the 8.5m height standard. As far as I understand his evidence, his reason was that only in this way could the proposal achieve the same or similar height as the characteristic building height. However, Mr Tzannes thought that the building related well to the characteristic building height. In his final report of 4 April 2006 he wrote: I…concur that the overall height of the proposed development has been increased. This increase in overall height is also accompanied by a reduction in eave heights, resulting in minor improvements to solar access. The increase in height does not, in my opinion, result in a built form that varies significantly from the height of buildings nearby or in negative environmental effects of significance. (Paragraph 1.5.1) In my opinion, restricting the extent of the breaches to the height control would reduce interior amenity without benefit to the design of the built form when perceived from the public domain and nearby properties. The proposed roof pitch, roof form, materials and detailing reflect the character of the area and generally achieve an appropriate transition between the height of existing residential buildings on adjoining properties. (Paragraph 1.5.4) 25 Professor Webber's final report of 16 March 2006 suggests that he also accepts the variation of height, ie It is pointed out that the application continues to significantly breach the height standard - by up to 3 metres. I believe that, except for the level 4 area described in (c) above, this could nevertheless be accepted. (Note: Amendment (c) is described below; the applicant accepted it and it forms part of the amended drawings.) 26 Thus both urban design experts (Professor Webber, appointed by the council and Mr Tzannes, selected by the parties and appointed by the Court) consider that the variation of height is justified. I agree with this assessment. In my opinion too, the height of the building will be appropriate in the context of the characteristic height in the street. The strict enforcement of the height development standard is therefore not necessary. The SEPP 1 Objection is well founded. Urban design 27 In her submission, Ms Irish described this issue as the proposal's bulk and scale, its appropriateness in its context and its impact on the conservation area. A large part of this issue was the proposal's height and its exceedence of the 8.5m standard, - the issue dealt with above. In my understanding, apart from the questions of the front projection, side setback, privacy and excavation, there was no argument from any of the experts that the proposal was inappropriate in its context or that it had an unacceptable impact on the conservation area. Mr Tzannes considered that the amended proposal performed acceptably on all issues. Front projection 28 Professor Webber's endorsement of the proposal was subject to three amendments, to which he referred as (a), (b) and (c). As I mentioned above, the amended proposal includes amendment (c). Amendment (a) requires the removal of the easternmost sections of levels 1 and 2 and the flat roof over the level 2 terrace. The amended proposal has deleted the flat roof over the level 2 terrace. Mr Tzannes did not consider the first part of amendment (a) (ie the removal of the easternmost section of level 1 and 2) necessary. Mr Sanders supported Professor Webber's opinion. I do not think that the difference of opinion is substantial, or that it would make a great deal of difference to the character of Cremorne Road. Since Mr Tzannes does not think the removal of this section of the building is necessary, I accept his evidence. 29 As regards Professor Webber's suggested amendment (b) concerning the removal of a small pergola over the level 3 eastern terrace, in oral evidence he agreed that this was not an important requirement. The remaining issues 30 The remaining issues are the setback from the northern boundary, impact on privacy and excessive excavation. 31 The proposal's setback from the northern boundary is 1.5m. This is slightly less than the setback of the existing church. Professor Webber, Mr Tzannes and Mr Player agreed that the setback was adequate. Mr Sanders thought that an additional 0.5 or 1m would be beneficial. 32 The applicant has designed the building so as to minimise overlooking of windows and balconies of No 44, though, of course, overlooking has not been entirely eliminated. As Ms Irish pointed out, the proposal benefits from the large setback of No 44 from the common boundary. I accept that this is true. However, the 15m-setback of that part of No 44 that faces the common boundary and contains fenestration and balconies means that increasing the proposal's setback on its own site by 0.5 or 1m would not achieve any significant benefits to privacy. 33 As regards the extent of excavation, of the four experts only Mr Sanders said that he had a concern, though I understood him to say that the concern was not major or serious. I conclude therefore that setback, impact on privacy and extent of excavation are not reasons that would justify refusal. Conclusion 34 The amended proposal meets the suggestions of the Court-appointed expert on urban design, Mr Tzannes. With the exception of the removal of a small part of the eastern façade, it meets the suggestions of the council's urban design expert, Professor Webber. It does not meet the requirements of the council's planning expert Mr Sanders, who wants the top level to be removed, Professor Webber's suggestion for the eastern façade to be implemented, and the setback to be increased by 0.5-1m. The applicant's planning expert, Mr Player, endorses the amended proposal. 35 In my opinion, the amended proposal represents an acceptable outcome. It fits into Cremorne Road and the conservation area; it relates well to the adjoining Rectory; it maintains reasonable amenity (though not existing amenity) for the residents of No 44, and it retains the existing significant city views from that building. The appeal is therefore upheld. Orders 1. The appeal is upheld. 2. Development application to demolish the existing church and erect a four storey residential flat building containing five dwelling over basement parking on lot A DP 449796, known as 42A Cremorne Road, Cremorne. 3. The exhibits are returned except Exhibits 12, A and B. _______________ Dr John Roseth Senior Commissioner 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.