Morrison Design Partnership v North Sydney Council and Another [2007] NSWLEC 839

Land and Environment Court of New South Wales

CITATION : Morrison Design Partnership v North Sydney Council and Another [2007] NSWLEC 839

Applicant: Morrison Design Partnership Pty Ltd

PARTIES : First Respondent: North Sydney Council

Second Respondent: Director General of Planning

FILE NUMBER(S) : 11016 of 2007

CORAM: Roseth SC

KEY ISSUES: Development Consent :-

CASES CITED: Farrah v Waringah Council and Others [2006] NSWLEC 191

DATES OF HEARING: 19/12/2007

DATE OF JUDGMENT: 24 December 2007

Applicant: Mr N Hemmings QC First respondent: LEGAL REPRESENTATIVES: Mr A Panuccio, solicitor

Second Respondent: Ms F Berglund, barrister

JUDGMENT: - 4 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Roseth CS

24 December 2007

11016 of 2007 Morrison Design Partnership Pty Ltd v North Sydney Council (First Respondent) and the Director General of Planning (Second Respondent)

JUDGMENT 1 Senior Commissioner: This is an appeal against the refusal by North Sydney Council (the council) of a development application for change of use from boarding house to residential care facility including partial demolition and new buildings on lot 1 DP 356475 (7 Mann Avenue) and lot 1 DP 509072 (9 and 11 Mann Avenue) Neutral Bay. The sole grounds for the council's refusal is the refusal by the Director General of Planning (the Director General) to issue a concurrence pursuant to clause 7(3) of State Environmental Planning Policy 10 – Retention of Low Cost Rental Accommodation. The Director General has been joined as the Second Respondent. The matter was listed for conciliation and/or determination under s34 of the Land and Environment Court Act 1979. 2 On 29 November 2007 Preston CJ heard an application by the Owners Corporation of Strata Plan 46768 (the owners of the neighbouring building 2 Hayes Street) to be joined as Third Respondents. His Honour refused the application. Paragraph 45 of the judgment states: The current parties, Morrison Design Partnership, North Sydney Council and the Director General of Planning, have agreed to representatives of the Owners Corporation and its experts attending the forthcoming s34 conciliation conference and addressing each of the issues about which the Owners Corporation is concerned and which it wishes to agitate on the appeal. 3 When the matter was listed for a conference under s34, it appeared that the Court's determination would be made under s34(3)(b)(ii), since the Director General, having refused concurrence, was unlikely to reach agreement with the other parties. In the event, at the beginning of the conference, the Director General's representative, Ms F Berglund, informed the Court that agreement had been reached among all three parties. Consequently, the appropriate limb of s34 for the determination of the appeal is s34(3)(a), which provides that the Commissioner shall dispose of the decision, as agreed to by the parties, so long as that decision is in accordance with the law. The evidence of objectors affects the decision only to the extent that it influences the terms of the council's agreement with the other parties. In the present case, the council had accepted, as part of its assessment process, some of the objectors' concerns and required the applicant to amend the proposal to meet those concerns. To the extent that the objectors now claim that their concerns were only partly taken into account, the council says that the further concerns are not valid. Neither the representative nor the expert of the council was therefore willing to defend those further concerns. 4 In order to ensure that the undertakings by the parties mentioned in paragraph 45 of Preston CJ's judgment are honoured, and in view of the fact that the three parties agreed to my disposing of the proceedings, I have acted as if the determination were under s34(3)(b)(ii). Since I concluded that the concerns were not valid, little turns on whether the Court's determination was under one or the other limb of s34. 5 The objectors' planning expert, Mr A Moody, put the objectors' concerns to the Court. The concerns divide into two categories, traffic and parking on the one hand, and bulk and scale on the other. The first category, traffic and parking, relates to the use of the shared access way during and after construction. The conditions of consent include a deferred commencement condition requiring the applicant to prepare Construction Management Program to the council's satisfaction. The condition includes the following: Consultation regarding a draft Construction Management Program must be carried out with the residents and owners of No.2 Hayes Street prior to Council adopting any such program. A maximum time period of 60 days will apply for resident consultation from the time of circulating a draft Construction Management Program. Should concurrence not be achieved within this timeframe, the applicant will advise Council and provide to it documentary proof that negotiations were undertaken. 6 The objectors' advocate, Mr K Webber, submitted that the deferred commencement condition is inappropriate because the construction management program should be determined before the consent is given. To support this, he referred me to the judgment of Talbot J in Farah v Warringah Council and others [2006] NSWLEC 191. However, the deferred commencement condition in the present case is sufficiently certain to be appropriate. It merely fills in details, which, in the case of a 10m wide access way are unlikely to cause problems. This is not to say that construction traffic will not annoy the residents of 2 Hayes Street; however, the annoyance is no different from that that is likely to have occurred around No 2 when that building was constructed. 7 I turn to the operation of the access way after construction is completed. The applicant agreed to construct a passing bay and a pedestrian way within the right-of-way. The parties agreed to a condition of consent requiring this; however, I could not find such a condition in the draft conditions submitted to the Court. I have added the condition as Condition C39(e). 8 I turn to the objectors' concern with height and scale. Mr Moody says that the proposal's height is in breach of the maximum height standard of 8.5m. The council's Executive Assessment Planner, Mr A Nixey, said that the 8.5m height standard applies to all development apart from residential flat buildings. The applicant has lodged an Objection under State Environmental Planning Policy No 1 to the standard. In Mr Nixey's opinion, the Objection is well founded, mainly because a residential care facility is much closer in character to a residential flat building than to a house, for which the 8.5m height standard is mainly intended to apply. Moreover, the proposal complies with Building Height Plane. This reasoning is sound and I accept Mr Nixey's opinion that the variation of the height standard is justified. 9 According to Mr Moody, the adverse consequences of the proposal's bulk and scale for 2 Hayes Street are that the northern courtyard of Unit 7 will be unreasonably overshadowed and the proposal will appear too bulky. Mr Nixey points out that the northern courtyards, in particular that of Unit 7, are below natural ground level, so they are vulnerable to overshadowing. In addition, the apartments have southern courtyards that are large enough to allow half the area to be in sunlight at mid-winter. I have inspected 2 Hayes Street (though I could not get into Unit 7) and I agree with Mr Nixey. In my opinion, the proposal is well designed. Its designer has taken care to minimise the impact on 2 Hayes Street. To the extent that some impact remains, it is of a nature that residents of an inner suburb like Neutral Bay should accept. 10 For the above reasons, the appeal is upheld.