Land and Environment Court New South Wales Medium Neutral Citation: Premier 1 Estate Pty Ltd v North Sydney Council; and ; Premier 3 Estate Pty Ltd v North Sydney Council [2015] NSWLEC 1241 Hearing dates: 23 and 24 April, 2015 Decision date: 01 July 2015 Jurisdiction: Class 1 Before: Smithson AC Decision: Appeals are upheld Catchwords: DEVELOPMENT APPLICATIONS – Residential flat buildings, adjoining appeals, shared basement car park, view impacts, bulk and scale, landscaping, transition zone Legislation Cited: Environmental Planning + Assessment Act 1979 North Sydney Local Environmental Plan 2013 Cases Cited: Tenacity Consulting v Warringah Council [2004] NSWLEC 140 Category: Principal judgment Parties: Premier 1 Estate Pty Ltd and Premier 3 Estate Pty Ltd (Applicants) North Sydney Council (Respondent) Representation: Counsel: Mr C McKoewn (Applicant) Solicitors: Gadens Lawyers (Applicant) Ms K Gerarthy – HWL Ebsworth (Respondent) File Number(s): 10461 of 2014 and 10724 of 2014 Judgment Introduction 1. This judgment covers two appeals heard concurrently as they relate to development over two adjoining properties, No's 1 and 3 Premier Street, Neutral Bay, with related ownership and sharing a single vehicular crossover and basement car park and with common works occurring across the shared side boundary. 2. The appeals are against the refusal by North Sydney Council (the Council and the respondent) under section 97(1) of the Environmental Planning and Assessment Act 1979 of DA 21/2014 and DA 233/2014 for the demolition of existing structures and erection of residential flat buildings with underground parking over the two adjoining properties which comprise the subject site. 3. Specifically, the proposed development involves the construction of two residential flat buildings; one on each of the existing properties; containing, respectively, nine apartments over four to five levels at 1 Premier Street; and four apartments over four levels at 3 Premier Street. 4. The development involves excavation into the natural rock face in front of 3 Premier Street to provide a common single vehicular crossover to a shared basement car park with two levels of parking serving both of the proposed residential flat buildings. There is some minor encroachment of both buildings over their common side boundary and common works across the site. 5. During the hearing, and to address one of the contentions raised by the Council, the Court was provided with owners' consent for each property so that required works over both properties associated with any approved development could be undertaken. These works included construction and use of the common crossover and basement car park. 6. Counsel for the applicants also confirmed that the applicants wished for the Court to determine the application as one development rather than as individual developments and proposed amalgamation of the properties prior to construction as a deferred commencement condition to reinforce this. In this judgement reference to "the applicant" means both applicants. 7. Expert Planning evidence on merits issues was taken during the hearing as a single development, albeit the initial Development Applications were not lodged on this basis but were amended over time in response to Council and neighbour issues resulting in an integrated response to developing the adjoining properties as a single site. The Site 1. The site, comprising both 1 and 3 Premier Street, is located on the eastern side of Premier Street at its intersection with Highview Lane opposite the intersection of Premier Street and Ben Boyd Road. 2. No. 1 Premier Street is described as Lot 2 DP377483 and is triangular in shape with an area of 838m². It has frontages to Premier Street and Highview Lane and slopes significantly from north to south with a fall of 9.5m over the length of the lot. The lot contains a number of sandstone outcrops with a natural rock wall approximately 4 metres high elevating the lot above Premier Street. It currently contains two apartment buildings which have no street access or onsite parking. 3. No. 3 Premier Street is described as Lot 1 DP 377483 and Lot 1 DP663537. It is irregular in shape with an area of approximately 430m². The lots have a significant slope from east to west with a fall of approximately 8.5m over the length of the property. A natural rock wall of varying height elevates the lots above Premier Street. The lots currently contain a two storey dwelling with access provided from Premier Street through the rock wall and there is a disused parking space partially cut into the rock wall. 4. Collectively the two properties (3 lots) comprising the site result in a combined site area of some 1,268m² with a combined frontage of approximately 68m to Premier Street and 41m to Highview Lane. History of Applications and basis for a single Judgment 1. A development application (DA21/2014) for 1 Premier Street was lodged with the Council in January 2014. Following the provision of requested additional information, the DA was notified to the owners of adjoining properties and in the precinct with 9 objections received. The proposal was considered by the Council's Design Excellence Panel in March 2014 who did not support the application and recommended modifications to reduce the scale of the building, extent of excavation, and impacts to adjoining properties. One specific issue was the possible site isolation of 3 Premier Street. 2. DA21/2014 was refused by the Council in June 2014. The grounds for refusal related to: 1. Excessive bulk and scale of the development 2. Uncharacteristic development within the streetscape 3. Unsympathetic palette of colours and materials 4. Lack of residential amenity 5. Excessive excavation 6. Loss of natural landform, and 7. Insufficient and inadequate information lodged with the DA. 1. An appeal against the refusal was lodged in June 2014. 2. Following refusal of DA 21/2014, a DA was lodged for 3 Premier Street (DA233/2014) in July 2014. The DA was notified to the owners of adjoining properties and in the precinct with 11 objections received. The proposal was considered by the Council's Design Excellence Panel in September 2014 who did not support the application and recommended modifications for the same reasons given for DA 21/2014 (ie. to reduce the scale of the building, extent of excavation, and impacts to adjoining properties). 3. An appeal against the deemed refusal of DA 233/2014 was lodged in September 2014. 4. As a consequence of the section 34 conciliation process, Leave was granted by the Court in January 2015 for the applicant to rely on amended plans referencing one development (ie. 1-3 Premier Street). The amended plans were notified and 5 objections were received. 5. Whilst separate appeals for each DA were lodged, Counsel for the applicant advised the Court that the entities for both DA's were related, a single integrated development over both properties was now proposed sharing some common facilities and the Court was asked to approve either the development overall or not at all rather than consider the individual applications. However, if the Court was of the view that one DA could or should be approved but not the other, the applicant agreed to: 1. Amend each DA so that it applied to both lots to avoid the necessity to consolidate the lots prior to development but also to address the requirements of section 80A of the Act that a development approval cannot authorise offsite works without the consent of the owners of the offsite land; 2. A condition that approval for development on one lot did not authorise the proposed development on the other except for works required for the approved development. Specifically, no works above basement level were authorised for the lot to which consent had not be granted; and 3. A mechanism, such as an easement, allowing common use of the crossover and basement by both lots even if development only proceeded on one of the lots. 1. Whilst expert Planning reports were provided to the Court for each DA and appeal by the Council, such reports were not provided by the applicant and the Joint Expert Planning Report prepared for the Court by Mr Andrew Darroch for the applicant and Mr Luke Donovan for the Council primarily dealt with the total development over a consolidated site being 1-3 Premier Street. The proposed development/s 1. The proposed development/s in detail are as follows: 1 Premier Street 1. a part 4 part 5 storey residential flat building containing 9 x 3 bedroom apartments, with 2 apartments per floor for the first four levels and a penthouse at a partial fifth level; 2. portion of a two level basement requiring excavation into the natural rock face along Premier Street at 3 Premier Street to provide vehicular access via a ramp to the basement. The basement comprises a car park with 7 resident and 4 visitor parking spaces on Level 2 and 13 resident parking spaces on Level 1, garden storage, a pump room, a garbage storage collection point, bin hoist, unit storage facilities, pedestrian entrance leading to a lift lobby, and stairs between the basement levels and to the levels above. The basement car park, access and facilities service both 1 and 3 Premier Streets and the basement extends partially underneath both lots; 3. retention of some existing trees and new landscaping works; 4. secondary pedestrian access at the rear off Highview Lane; 5. a new stormwater management system connecting via a pit and pipe system with a new kerb inlet pit in Premier Street; and 6. the materials of the development include a pebble ballast roof, bronze painted aluminium cladding panels, and louvers to north facing facade windows and western facade windows and balconies. 1. 3 Premier Street 1. a 4 storey residential flat building containing 4 x 3 bedroom apartments with 1 apartment per floor over four levels; 2. portion of the two level basement car park and associated new access, ramp and facilities as described for 1 Premier Street; 3. proposed new landscaping works including the addition of new shrubs and plantings on Council land; 4. a new stormwater management system whereby the roof area drains through a rainwater reuse tank located in level 1 of the common basement. The remaining storm water connects via a pit and pipe system and lower level basement pump out system through a silt arrestor unit to the kerb and gutter in Premier Street; and 5. the materials of the development include a pebble ballast roof, bronze painted aluminium cladding panels, and louvers to western facing facade windows and balconies. 1. The following plan is a schematic overview of the development: Issues in Contention 1. Several of the contentions raised by the Council against the appeals were resolved by the additional information provided during the conciliation conference process or at the hearing, or by the amended plans which the Court granted Leave to be relied upon for the hearing. 2. Specifically, the provision of owners' consent for each property authorising works on the other property removed Council contention of concern with common works across the side boundary and the functioning of the development should only one DA be approved. An agreed deferred commencement condition requiring amalgamation if the total development was approved removed another contention. A contention that there was insufficient information was resolved by either the information provided during the hearing or agreed conditions to address the concerns. This included issues to do with drainage and the basement driveway and ramp. A contention that there was no bicycle parking was addressed by amending the plans to provide bicycle parking to the satisfaction of the Council. 3. The contentions which remained and which were addressed during the hearing were as follows: 1. Excessive bulk and scale of development 2. Inadequate landscaping across the site 3. View loss 4. Safety and security. Site context 1. The site is adjoined by an apartment building to the north-east, 7 Highview Avenue, which, adjoining the site, is only 3 storeys but is elevated above the site due to the topography of the land. This development is setback some 6 metres from the boundary with the site at its closest point (adjoining 3 Premier Street) with a minimum setback of 14 metres adjoining 1 Premier Street. 2. Immediately to the north, the site is adjoined at 5 Premier Street by a 4 storey unit development accessed from Premier Street. 3. Development to the east across Highview Lane comprises a two storey dwelling with access from Highview Lane but fronting Ben Boyd Road (No. 96 Ben Boyd Road). 4. Development to the west, across Premier Street, is a mixture of single dwellings and residential flat buildings which are largely not visible from Premier Street due to the significant slope of the land which falls sharply away from Premier Street. Resident Objections 1. At the commencement of the hearing, the Court heard from a number of residents who objected to the development. Residents who spoke to their concerns were owners or residents of units in 7 Highview Avenue. The grounds for their concerns varied but included: 1. Loss of views, including iconic views to Sydney Harbour, the Harbour Bridge and the city sky as well as valley views, and including from living and outdoor areas sitting and standing. 2. Concern that the montages showing view loss were inaccurate or misleading or not taken from all the areas impacted. 3. The amended plans showing glass railings on terraces would not assist because people who would occupy the apartments would put barbeques and pot plants on the terraces which would still block views and can't be controlled. 4. The development would benefit from uninterrupted iconic views at the expense of residents at 7 Highview Avenue. A more equitable outcome should be required. 5. The scale of the development was too much, would be overwhelming and the sense of enclosure would impact on lifestyle and current landscaped outlook. 6. Concern about geotechnical matters including jackhammering two levels of garaging into rock, slippage and the inadequacies of geotechnical supporting information. 7. Consideration be given to the materials for the roof cover with a concern about glare reflection. 1. During the conciliation process, similar issues were raised by owners of units at 7 Highview Avenue but others issues were raised from owners of units at 5 Premier Street. Additional issues raised at that time by these residents included: 1. Bulk and scale. 2. Residents of 5 Premier Street would prefer access to be from Highview Lane. 3. Concerned about the difference in height between 3 Premier and 5 Premier Street. 4. Not concerned with view loss so much as requiring an open outlook corridor to be preserved. 5. Overlooking. 6. Removal of existing landscape screening and the retaining wall. Relevant Statutory Controls 1. The site is zoned R4 - High Density Residential under the North Sydney Local Environmental Plan 2013 ("the LEP") and is located within the Forsythe Neighbourhood in the Neutral Bay Planning Area Character Statement under the North Sydney Development Control Plan 2013 ("the DCP"). 2. The site is opposite the Neutral Neighbourhood Area which is characterised by lower density development and zonings under the LEP. 3. Other relevant controls include SEPP55 Remediation of Land, SEPP65 Design Quality of Residential Flat Development, Affordable Rental Housing SEPP, and SREP Sydney Harbour Catchment 2005. Summary of positions Council's Position 1. In opening submissions, Ms Gerarthy for the Council argued that 1. this was a prominent and unique site. The site was elevated and the rock wall, at up to 4m in height, was a unique feature of the street and needed to be considered in determining the impact of the development. 2. The site was constrained – by the topography and its natural features including its elevation and vegetated state, which the applicant has not adequately addressed. Any development of it would be highly visible. 3. The site is located within a transition area close to lower density development and needed to have regard to this. 1. The Council accepted that the proposed development, as it had been amended during the conciliation process, was a significant improvement compared to the initial applications. Positive elements were seen to be the shared access and consolidated basement car park. However, it was considered that the amendments did not go far enough in addressing adverse impacts. Applicant(s) Position 1. Mr McKeown, counsel for the applicanat, considered that: 1. The amended development was extremely limited in its non-compliances which were largely in terms of DCP controls which should be flexible in application. The proposal had been amended on a number of occasions in response to issues raised. 2. The LEP and DCP objectives on height were to inform the 12m height limit control in the LEP and not intended to preclude development to this height. 3. There is no limit to the number of storeys in either the LEP or the DCP. The only relevant controls pertain to height and the development complies with the LEP height provision. 4. The development is one that could reasonably be anticipated for the site. The basement needs to adjoin the street and the development could be only four storeys and step down further but this would have a more detrimental impact on views. 5. There are higher developments of a greater number of storeys in the vicinity and in the zone and these should not be ignored. 6. The Council is not concerned with setbacks in terms of any amenity issues but only with what is arguably characteristic. However, the side setbacks referred to by the Council as raising concern will largely not be visible from the street. There is in fact a total lack of amenity impacts associated with the development. Issues in Detail Bulk and Scale (Height) 1. There was common agreement between the Expert Planners that both of the proposed buildings comply with the 12m height controls under clause 4.3 of the LEP. However, the Council argued that this was a maximum height not a given and the development still had to meet LEP and DCP objectives. 2. It was also agreed that a portion of the development does not meet the building height plane requirement P2 in Part B, Section 1.4.6 of the DCP which requires that: "The building must not exceed a building height plane (BHP) commencing at 3.5m above the ground level (existing) from side boundaries and projected internally to the site at 45 degrees". 1. The experts disagreed on whether a 4 storey limit applied to the site. Mr Donovan was of the view that the development should be a maximum of 4 storeys to comply with the provisions of P2 in Part B of section 1.1.7 of the DCP which states: "Where applicable, the number of storeys within a building should be consistent with that identified in the relevant area character statement". 1. The experts agreed that neither the Neutral Bay Planning Area nor the provisions of the Forsythe Neighbourhood had a specific requirement for development to be limited to 4 storeys. It was also agreed that the only reference to 4 storeys in this Neighbourhood was in the reference to Figure B-1.4 which states: "Despite P7 above, Council may consider approval of a residential flat building with a flat roof, but only where: (a) the development complies with the height requirements under P1 above; and (b) where the top-most storey has been setback to comply with a 36 degree angle back from the top edge of the storey located immediately below (refer to Figure B-1.4)." The top-most storey in Figure B-1.4 is shown as a fourth storey. 1. Mr Donovan argued that the proposed 5 storey building with a flat roof fails to comply with the maximum 4 storey control as depicted in Figure B-1.4. 2. The tower style developments in the vicinity (at 100 Ben Boyd Road, 3 Highview Avenue and 3 Lindsay Street) were not considered by Mr Donovan to be characteristic of the locality and/or consistent with the quality built form of Neutral Bay where it stated in the DCP "buildings are of a lower scale and stepped on sloping terrain with vegetation abundant on steep slopes" (Section 7.0, Part C). In Mr Donovan's view, the proposed development on this elevated site is not low scale and/or appropriately stepped resulting in a development that is significantly larger than characteristic buildings in the locality contrary to Part B, Section 1.4.7 of the DCP which states: "01 To ensure the size of new buildings are consistent with surrounding, characteristic buildings and they are not significantly larger than characteristic buildings." 1. Mr Darroch argued that the site is adjoined by a 4 storey unit development at 5 Premier Street and the fifth storey of 1 Premier Street is setback with a 22 degree angle from the south western edge of the fourth storey thus complying with the 36 degree angle as required by the DCP. Furthermore, the development could be up to 4m higher in places and still comply with the LEP height control but have a far greater impact than the proposed development. He also stated that there were many buildings in the North Sydney LGA that had been approved which did not comply with the building height plane requirements of the DCP and that the DCP did not preclude larger buildings in the area, only "significantly larger buildings", which this was not. 2. Mr Donovan considered that the proposed built form on 1 Premier Street was not consistent with surrounding buildings within the locality. This portion of the site has a fall from north to south of approximately 10m. The site is also elevated above the footpath level of Premier Street by more than 4m. In particular, that the proposed development at 1 Premier Street to 5 storeys was not consistent with characteristic buildings that front Premier Street (eastern side) and Highview Avenue (western side). In his view, the characteristic built form in the locality is 3 to 4 storeys, with many of the 3 storey buildings having hipped (not flat) roofs. 3. The Council also argued that, whilst there was high rise development in the vicinity up to 9 storeys, these developments did not inform the desired future character of the area which is lower scale development of 3-4 storeys. Further that Premier Street was characterised by a subdivision pattern of smaller 15m wide rectangular lots with development typically having side setbacks of 2-2.5m which provided the relevant context. 4. Mr Darroch did not agree that the DCP precludes a fifth storey element on the site. He argued that the LEP sets a 12m height limit which, the Council agrees, the proposal meets at every point. If the DCP set a four storey limit where five storeys could be accommodated within a 12m control, in his view, 'this would be derogating from the LEP control and contrary to S79C'. 5. Furthermore, Mr Darroch argued that a fifth storey was a better outcome than the floorspace instead contained in a lower "spread out" building which would block more views and that, where the fifth level could be viewed from the public domain, such as the corner of Ben Boyd Road and Premier Street, it had a backdrop of taller buildings. 6. Mr Darroch argued that the DCP must be read in the form intended and one must look to the performance of the proposal in terms of the control and how it meets the DCP height objectives listed under Form and Massing being: "P1 The height of buildings is not to exceed that stipulated within cl. 4 .3 to NSLEP 2013", and "P2 Where applicable, the number of storeys within a building should be consistent with that identified in the relevant area character statement (refer to Part C of the DCP)." 1. In this regard, Mr Darroch argued that, as the development complies with the height limit in the LEP, and that there are no limits on the number of storeys identified in the area character statement in the DCP, the development meets the objectives of the DCP in terms of height including the setting back of the top most level in a 36 degree angle. 2. Mr Darroch does not believe Figure B1.4 sets a 4 storey height control for the site but is a guide to 12m high development on flat sites which propose a flat rather than a pitched roof. In his view, the buildings that Mr Donovan refers to as 'characteristic' in the locality being predominantly 3 storeys in height cannot be said to reflect the desired future character of the area as none of these realise the LEP 12m permissible height. 3. Furthermore, Mr Darroch argued that the DCP objective to be "consistent" with the surrounding development doesn't mean "the same as". It is entirely appropriate for a development which is part 4 storey and part 5 storey to be consistent with, and not significantly larger than, older 3 and 4 storey development in the vicinity. 4. Clause 1.4 (Quality Built Form) of DCP states as follows: "In response to their local context, buildings need to be designed to respect the existing topography and relate to the rhythm and pattern of characteristic buildings in the prevailing streetscape. A comfortable and memorable street will be one where no one building or feature dominates. Kerb and guttering, footpaths, fences, front gardens and the street frontage of buildings all contribute to the appearance of a street and influence how people feel in them and about them. Streets where people feel comfortable will exhibit consistency in these elements and relationships between the scale of these elements." 1. Mr Darroch contended that: 1. The development responds to this in stepping down the slope, breaking the proposal into two buildings, angling the frontage to the street, providing a single crossing, and following the rhythm and pattern of characteristic buildings. 2. It is inappropriate to extract a single DCP diagram which bears little relationship to the subject development and assert that precludes a part fifth storey. Any one control needs to be considered in context to determine what is trying to be achieved. In his view, the proposal is consistent with the control and the desired future character of the area in the form proposed. 3. There is nothing in the control which allows or encourages one to ignore the surrounding high rise buildings in the R4 zone and say they are uncharacteristic and therefore irrelevant. They are a valid part of the context and their bulk and scale make them the part of the character that one remembers. The proposal is sympathetic to and consistent with nearby building typologies and therefore achieves the objectives of the controls. Bulk and Scale (Setbacks) 1. In terms of front setbacks, in Mr Donovan's view, the significant level change between the street and the boundary of the site (greater than 4m) contributes to the excessive bulk and scale of the buildings when viewed from the public domain. The proposed development is therefore largely reliant on landscaping on Council land, not within the site, to soften the bulk and scale of the development which is not a desired planning outcome. 2. The experts agree that the front setback requirement is to match the alignment of the primary facades of adjoining properties as per P1 in Part B, Section 1.4.6 in the DCP. It was further agreed that: 1. The DCP doesn't distinguish between the front setback being to the street or to the front boundary of the site. 2. 5 Premier Street is the only adjoining property along Premier Street and has a zero front setback for the garaging from the footpath and an angled setback to the primary façade of the building. 3. There is no landscaped verge between the street and the boundary of 5 Premier Street as there is proposed between the street and boundary of 1 and 3 Premier Street and there is a footpath which runs along the eastern side of Premier Street. The experts disagreed on whether the separation of the landscaped verge and footpath shouId be considered. 4. 1 Premier Street is setback a minimum of 1.69m from the Premier Street boundary (and angles back to approximately 10m setback at the southern end) and by virtue of the landscaped verge and footpath is setback 7.9m from the street. 5. 3 Premier Street is setback a minimum of 1.5m from the front boundary (and angles back to approximately 10.6m setback at the northern end) and, by virtue of the landscaped verge and footpath, is setback a minimum of 7.7m from the street (and more than 12m - 15m on the ends). 1. The applicant argued that the front setback matches the alignment of adjoining front setbacks and must be considered having regard to the existence of the rock shelf. The rock shelf will remain and will continue to provide a landscaped and visual buffer between the street and the development. 2. In Mr Darroch's view, what is more important in relation to the neighbouring buildings is that their "rhythm and pattern" do not exhibit stepped upper levels. He considers that the proposal responds to the character by angling the buildings to Premier Street and providing varied front setbacks with the site benefitting from the planting within the road reserve whilst also providing extensive landscaping within front setbacks to screen the buildings. 3. In terms of side setbacks, it was agreed that the DCP requires a minimum side setback of 1.5m and that storeys 1-4 of 1 Premier Street are setback 1.5m from the Highview Lane frontage and the building on 3 Premier Street is setback 1.5m from the northern side boundary. However, the Council considers that these setbacks are inadequate. Mr Donovan noted that the average side setback for the properties along Premier Street is between 2m and 2.5m, although accepting that none of these properties were approved under the current planning controls. 4. In Mr Donovan's view, the proposed side setback at 1.5m is not characteristic of the side setback pattern along Premier Street contrary to the DCP requirement for development to "reinforce the characteristic pattern of setbacks.....within the street". 5. As previously indicated, the proposed development is non-compliant with the DCP building height plane. The non-compliant elements are adjacent to Highview Lane (parts of levels 4 and 5). In Mr Donovan's view this non-compliance with the height control and an inadequate setback to the boundary contributes to the excessive bulk and scale of the building when viewed from the public domain, contrary to 02 in Part B, Section 1.4.6 of the DCP which states: "02 To control the bulk and scale of buildings". 6. Conversely Mr Darroch was of the view that Highview Lane functions as a walkway rather than a public road and the minor breaches associated with the development would not be readily ascertainable to users of it. 7. The separation distances between the buildings at No's 1 and 3 Premier Street range between nil (rear) and approximately 10m (front). Mr Donovan argued that these developments are situated on separate lots and as such the setback between buildings should be compliant with the minimum side setback controls in the DCP which would allow for greater landscaping to be provided between buildings to soften the built form when viewed from the public domain rather than it reading as a single large development. 8. Mr Darroch considers that Mr Donovan has misunderstood the DCP side setback requirements. The DCP suggests matching front setbacks but sets requirements for side setbacks which do not require matching buildings in the street. If considered as a single development over a consolidated site, as is proposed, the proposal provides the required 1.5m side setback and only breaches the building height plane in limited locations on the upper levels. 9. The applicant argued that the upper level non-compliances would have no adverse impacts, with setbacks well in excess of the minimum provided where impacts would otherwise occur, such as to 96 Ben Boyd Road. Furthermore, the development fully complies with the rear setbacks and there would be little impact on 5 Premier Street which was oriented away from the site towards North Sydney. 10. The fact that the proposal is elevated above the street is, in the applicant's argument, by reason of the topography and is characteristic of this area. This is addressed by stepping the building at 1 Premier Street back at the higher levels and 3 Premier Street being sited lower on that site. Accordingly, Mr Darroch argued, the proposal is satisfactorily in terms of its setbacks and is consistent with the rhythm and pattern of the street. Bulk and Scale (Requirement for a transition zone and stepping of building) 1. The land opposite the site across Premier Street to the west is zoned R2 Low Density Residential with a building height limit of 8.5m. A significant slope occurs below Premier Street so that these properties are generally below the level of the street and are oriented away from the street (and therefore the site) towards the views of North Sydney. 2. It was agreed that any future development on the properties on the western site of Premier Street would likely be below street level and step down the site to follow the topography and to achieve compliance with the controls 3. The Council considered that the proposed development fails to consider the future development that is likely to occur on the land in this R2 zone. In Mr Donovan's view, the development is located on an elevated site and would effectively be viewed as 6-7 storeys from the footpath on the western side of Premier Street given the significant level changes. In particular, the proposed scale of the development in conjunction with the natural landforms would result in an inappropriate transition with the lower scale future developments that are likely on the properties on the western side of Premier Street. 4. In response, Mr Daroch claimed that, if Mr Donovan's hypothesis was correct, then the existing buildings on the site which are set above the street by the same level would be somehow seen to be 4 storeys high whereas this is not the case. He argued that the proposal is in a high density zone with a greater height limit and would be seen to be providing an appropriate transition stating that the proposal would in fact have very little relationship visually or otherwise with the land across the road in the R2 zone. 5. The experts agreed that the DCP does not specifically require any transition between the zones but Mr Donovan considered such a transition should be provided. Mr Darroch argued that development in proximity to the site, including in the low density zone, included residential flat buildings such as approved for 2 Premier Street with this building up to 5 storeys in height stepping down the site. 6. In submissions the Court was asked by the applicant to consider the context in terms of the need for transition not just the existence of different adjoining zones. Where there are no amenity impacts, the need for transitional development was questioned. 7. There was common agreement that the proposed building on 1 Premier Street steps between the fourth and fifth storeys from both the front and the sides. The parties disagreed however, as to whether this meets the requirement to step down in height in accordance with the terrain as per P1 in Part C, section 7.1.3 of the DCP. 8. The Council was of the view that the proposed development at 1 Premier Street fails to adequately step down in height as it only stepped down between the fifth and fourth storeys, with no further stepping whereas the elevated nature of the site necessitated further stepping down to Premier Street in order to better respect the natural landform of the site. 9. In response, Mr Darroch stated that the development had a small footprint which only allows a single step at the upper level. Furthermore, introducing multiple steps in the building makes it difficult or impractical to provide disabled access through the building. The proposal steps back from Premier Street and Highview Lane and steps between 1 Premier and 3 Premier and, in this way, achieves the intent of the controls. Mr Darroch further noted that, in order to provide an accessible building, a lift needs to be provided through the building which precludes all of it stepping. 10. The applicant further argued that other buildings on this side of Premier Street do not "step down" the site. This was only a feature of development on the opposite side of the street due to the steep drop in sites from Premier Street. Furthermore, in evidence Mr Darroch contended that the proposed development "stepped down" more than its neighbours on the same side of the street and any further stepping down in the design would likely only have adverse impacts on neighbours' views. Findings on bulk and scale 1. The site is prominent in that it is elevated above Premier Street. However, it also benefits from a landscaped rock wall, or shelf, along much of the Premier Street frontage which comprises part of the Council verge providing the ability to partially screen any development on the site into the foreseeable future. 2. The parties agree that the development meets the primary controls of the site in terms of use and height. 3. In terms of bulk and scale the only non-compliances are with a limited number of numeric DCP controls and, arguably, objectives. In particular, the development does not comply with the building height plane (BHP) specified in the DCP. However, the Council did not argue the applicant's contention that few developments in the North Sydney LGA comply with the BCP nor was there a concern that the breaches had any adverse amenity impacts on neighbours. 4. Mr Donovan's main concern was that the building at 1 Premier Street had a partial fifth storey which was, in his view, not permitted by the DCP because a figure in the DCP implied there was a four storey limit even if the LEP height control was complied with. 5. I accept the applicant's argument however, that had the Council intended that development in the area be limited to 4 storeys the area's character statement in the DCP would specifically state this as it does for other areas of the DCP and would not rely on interpreting the intent of a figure not specifically related to the number of permissible storeys. I also do not consider that the number of storeys inferred in a DCP is a relevant consideration if it precludes the LEP maximum allowable height being achieved and have to agree with Mr Darroch that it would be a derogation of s79C of the Environmental Planning and Assessment Act if it had this outcome. 6. I also have to agree with the applicant that, in terms of height, the intended future character of development in the area must align with the permissible height under the LEP and the number of storeys that result is a function of design and site topography within the limits of this height control. 7. I also find that the topography of the area is such that the need for a transitional development is questionable albeit the site is opposite a lower density zone. It was evident from the site view that development in the lower density zone, whilst also being in Premier Street, has little interface with the development opposite in that street. Indeed most of the properties in the low density zone are largely not visible from Premier Street being on the low side of the street and oriented away from the street to views to the west. It is also the case that there is some existing and proposed residential flat buildings on this side of the street even if they are non-conforming. 8. I therefore agree with Mr Darroch that the proposed development would have very little relationship visually or otherwise with the land across the road in the R2 zone. Accordingly, I do not consider a "transitional" development of the subject site to be either justified or necessary particularly noting neither the LEP nor the DCP specifically require it. 9. I also accept that there is a backdrop of higher developments in the vicinity of the site which form as much a part of the surrounding characteristic buildings of the zone referred to in the DCP as those lower scale developments which exist and which do not achieve the development potential allowable by the zoning and controls now in the LEP. 10. In terms of the need to step the building down the site, I accept Mr Donovan's evidence that this is an objective of the DCP but I also accept the applicant's argument that: the only immediately adjacent development in Premier Street does not do this; the proposed development is partially stepped down; and that further stepping down could result in a potentially more adverse impact on views and the landscaped setting of the development than what is proposed. 11. I also accept that the desire of the Council to have greater separation of the development through increased side setbacks would have little material benefit when viewing the development from the street given the existence of the landscaped rock shelf and note that increased side setbacks are not required to address material amenity concerns. Further that the minimum side setbacks required by the DCP are met at the street level where they would be most visible. 12. For the above reasons, I do not consider that the bulk and scale of the development is a ground to warrant refusal of the applications. Landscaping 1. The parties agreed that site coverage of the proposed development overall is 50.1% against a DCP requirement of 45% (Part 8, Sections 1.5.5 and 1.5.6). The landscaped area is 36.1% (40% required under the DCP) and therefore fails to meet the requirement by 49.7m². However, the calculation excludes an area above the basement which has a soil depth of 3m and an area of 96.6m² and which is proposed to be planted but which does not satisfy the definition of landscaped area under the DCP because it is over a basement. 2. Mr Darroch believes that, once planted, the landscaped area over the basement would mean that the site landscaping overall would meet the objectives of the DCP and be an acceptable landscape outcome given the proposed amalgamated basement and single entry will minimise the impact on the rock shelf. He noted, and Mr Donovan agreed, that the Council had accepted this as an acceptable landscape outcome at 3 Raymond Road where 10% of the required 40% of landscaping was provided over a basement. 3. In essence, the applicant's argument was that there was a minor numeric shortfall in terms of a DCP control and definition however, the outcome would meet the DCP objectives with the extent of area actually landscaped in excess of the numeric standard. 4. In Mr Donovan's view, the proposal is an overdevelopment that fails to promote the landscape quality of the locality. In his view, the excessive building footprints significantly reduce the opportunity for deep soil landscaped zones across the site, particularly adjacent to the Highview Avenue and northern boundaries contrary to Part B, Section 1.5.5 in the DCP which states: "02 To ensure that development promotes the existing or desired future character of the neighbourhood. 04 To limit the building footprint so as to ensure adequate provision is made for landscaped area and private open space." 1. The Council argued that the existing locality is predominantly characterised by built forms sited within established landscape settings and the development is therefore contrary to these DCP objectives and with the Quality Built Form requirements in the Neutral Bay Planning Area as outlined in Section 7.0 of the DCP which states "buildings are of a lower scale and stepping on sloping terrain with vegetation abundant on steep slopes". 2. The Council was also concerned that: 1. there was an inadequate landscape buffer to soften the built forms between 3 Premier Street and the adjoining development at 5 Premier Street contrary to 01(c) in Part B, Section 1.5.6 in the DCP which requires that developments "provide a landscaped buffer between adjoining properties". 2. The proposal fails to provide substantial landscaping to maintain the existing landscape character of the locality contrary to 01(f) in Part B, Section 1.5.6 of the DCP, the intent of which is to "promote substantial landscaping, that includes the planting of trees that when mature will have significant canopy cover". 3. The building at 3 Premier Street is largely reliant on landscaping over the basement level to soften this development, which is considered inadequate given its excessive bulk, limited setbacks to the other boundaries of the site, and extensive site disturbance, limiting opportunities for substantial landscaping. 4. A landscaping plan had not been submitted with the amended plans showing the integrated scheme across the total development. This should not be left as a condition of consent as it was important to consider how the landscaping might reduce bulk and scale. 1. In response, Mr Darroch noted that the landscape plan submitted with the application propose planting river birch and bamboo on the boundary interfaces with a mature height of 7m and 5m respectively which would successfully provide a landscape screen. Further planting would also occur in the street setback. If this was considered inadequate, the applicant offered to replace the proposed species with species which would attain a greater mature height and spread. 2. Mr Donovan considered that each application should be assessed separately in terms of compliance with landscaping controls. However, Mr Darroch considered that dealing with the two buildings separately in determining compliance with the controls is of little real assistance when the development will be read and experienced as a single amalgamated site. 3. Whilst a number of trees are to be removed to facilitate the development, the mature trees on the southern corner of the site are to be retained. The applicant argued that most of the mature landscaping which contribute to the character of the area occurs in the front and rear setbacks of properties with very little by way of landscaping in the side setback between properties. In this regard, Mr Darroch argued that the proposal is consistent with the landscape character of the area. 4. Clause 1.5.6 Landscape Area of the DCP states as follows; "01 The specific objectives of the landscape area controls are to: 1. promote the character of the neighbourhood; 2. provide usable private open space for the enjoyment of residents; 3. provide a landscaped buffer between adjoining properties; 4. maximise retention and absorption of surface drainage water on site; 5. minimise obstruction to the underground flow of water; 6. promote substantial landscaping, that includes the planting of trees that when mature will have significant canopy cover; 7. control site density; 8. minimise site disturbance; 9. contributes to streetscape and amenity; 10. allows light to penetrate between buildings; 11. encourage the provision of space for biodiversity conservation and ecological processes; and 12. provide a buffer between bushland areas and development." 1. In Mr Darroch's view, there can be little doubt that the proposal meets these objectives, or has the capacity to better meet these objectives with additional landscaping if that is thought necessary. 2. Mr Darraoch also argued that the Council fails to acknowledge that the verge on Premier Street adjoining the site makes a significant contribution to the landscaped character. He felt that the opportunity exists for the development to plant and improve this area to great public benefit. In his view, this area is, and has been, neglected for an extended period and the Arborist's report shows that the proposal has very little impact upon the planting on this verge. In Mr Darroch's view, a very significant public benefit to Premier Street would arise from the restoration of the landscaped verge, which the applicant offered to undertake. 3. During the hearing a schematic updated landscape plan was submitted. The applicant also agreed to accept deferred commencement conditions requiring the provision and maintenance of adequate landscaping plan for the overall development as follows: "The person with the benefit of this development consent is to seek Council's recommendations regarding the species and location of any additional planting to occur within the verge of the Premier Street frontage and other locations across the site. A final landscape and vegetation management plan prepared by a suitably qualified landscape architect which reflects the recommendations provided by Council is to be submitted to Council for approval prior to the development consent becoming operative. In circumstances where a suitably qualified arborist indicates that the locations or species proposed by Council are unable to be supported, the applicant is to provide the vegetation in alternative locations and submit the updated landscape plan to Council for approval prior to the development consent becoming operative". 1. Mr Donovan stated that the Council would agree to non-compliances with landscaping and site cover controls if it meant a better outcome was achieved in terms of view impacts. The Council also accepted that the area over the basement excluded from the DCP calculated area was capable of being landscaped. 2. In submissions, Mr McKeown noted the limited landscaping provided on adjacent properties and argued that the area above the basement would provide double the area of deficiency claimed by the Council under the DCP and that this area is 'entirely appropriate and in an excellent position to soften the buildings at 1 and 3 Premier Street with the fortuitous existence of the rock wall'. Findings on Landscaping 1. A key concern of the Council with landscaping was primarily the lack of compliance with a numeric DCP control due to the exclusion of the area above the basement albeit acknowledging that this area was capable of being landscaped. 2. I consider that the non-compliance with the DCP numeric control for landscaping is both minor and insignificant in terms of the landscape outcome for the site. The actual amount of landscaping will exceed the numeric requirement of the DCP with a significant area of it provided at the front of the site and will visually separate the two buildings when viewed from the public domain. I also accept that the landscaped rock face, which will be further landscaped and maintained by the applicant is, as counsel for the applicant described, 'fortuitously located' to assist with screening the development and is likely to remain in place indefinitely given it is Council controlled. 3. I do not consider that the development has an excessive footprint or minimal opportunity for deep soil landscaped zones given the Council agrees the area over the basement can be such a zone and that the actual proposed planted areas will exceed the amount of landscaping required by the DCP if this area is included. I therefore consider that the DCP's objectives, if not the numeric controls, for landscaping are met. 4. Furthermore, the applicant has agreed to deferred commencement conditions which provide the opportunity for the Council to further determine the location and species of plantings prior to development being able to commence, including the number of canopy trees and adjacent to Highview Lane to address the Council's concern with the visual impact of the development to the lane. View Impacts 1. The Council argued that the proposed development would get uninterrupted views and that neighbours were asking for 'fairness and sharing' in terms of views. 2. View diagrams were provided to assess the view impact of both buildings. The experts agreed that the view impacts to units 16, 17, 18, 19, 20, 21, 22, 23 and 24 of 7 Highview Lane were satisfactory. The experts disagreed over the view impacts to units 13, 14 and 15 of 7 Highview Lane. 3. The Council had previously approved a 4 storey development at 1 Premier Street. The applicant argued that, for that development, the Council had considered the view impacts to be acceptable with a parapet level of the approved development at RL78.50. The current proposal for 1 Premier Street has a fifth storey roof height of RL77.10. 4. Mr Donovan argued that the previous application was assessed against previous planning controls and had since lapsed. However, Mr Darroch noted the height of the proposed development was less than had previously been approved where the Council considered the view impacts were acceptable. 5. Whilst the Council did not raise any issue with view impacts from the sitting positions of adjacent units, in Mr Donovan opinion, the proposed development, specifically the fifth storey component of 1 Premier Street (which he argued is non-compliant with the maximum storey control in the DCP), resulted in unreasonable view impacts for a number of the units at 7 Highview Avenue, namely: 1. A severe loss of iconic views (to the Harbour Bridge), across the southern side boundary from a standing position within the private open space of Units 13 and 14; 2. The majority of the Harbour Bridge and city skyline views would be lost from a standing position within the private open space of Unit 13 and 14, as well as from inside Unit 14; and 3. A moderate loss of city views, across the southern side boundary, from predominantly a standing position within the private open space of Unit 15. 1. Mr Donovan argued that the proposed development at 1 Premier Street fails the principles of view sharing in Tenacity Consulting v Warringah Council [2004] NSWLEC 140 as the fifth storey is non-compliant with the DCP and a more skilful design could minimise the impacts. 2. Mr Darroch argued a skilful design had been undertaken to minimise view impacts and that the view impacts from the proposal were reasonable and less than those arising from the scheme previously approved by the Council for 1 Premier Street or which would arise from a development which totally complied with the current controls. Therefore, in his opinion, there had been an impact on development potential in order to minimise view impacts. Accordingly, on any test, the proposed view sharing was acceptable. 3. Finally, counsel for the applicant argued that this was a development which had been designed to share views where possible and the view impacts were reasonable: the part of the development that impacts on views was below the maximum permissible height of 12m at only 7-8 metres; some view loss was inevitable given the features of the site and the development controls which applied to it; the view losses were to units on lower floors of adjacent development where views would be blocked even if the site was only developed at 2 storeys; and the issue was view sharing not view loss, and sharing had been achieved to the degree that was reasonable. Findings on View Impacts 1. I accept that there will be view impacts associated with the proposed development on occupiers of units at 7 Highview Avenue. I note that these will principally be from the private open space areas and include to Sydney Harbour and the city. 2. However, I have to accept the applicant's argument that there would be view impacts to units at 7 Highview Avenue with any development of the site that was more than 2 storeys. It isn't possible to know if an alternative design which fully complied with the LEP and DCP controls would have less impacts but, in my opinion that would be unlikely and could simply transfer impacts to other units or locations in adjacent developments. The development does not fully develop to the height permissible under the LEP and the applicant argued this was to minimise the view impacts. 3. Whilst I accept residents of adjacent developments are understandably concerned with impacts on their views, on the evidence provided to the Court, the reduction in views and the dimunation of outlook for adjacent units is an inevitable consequence of developing the site given the topography of the area and the development controls which apply to the site, and the applicant has designed a development to reasonably minimise these impacts where possible within the parameters of those controls. Safety and Security 1. The Council raised concern that the proposed entrances to the development would likely cause safety and security concerns for residents and visitors of the buildings. 2. The concerns were summarised by Mr Donovan as follows: 1. the buildings largely rely upon a common pedestrian entry off Premier Street that is below existing ground level and recessed 3.6m from the Premier Street boundary and only 1.2m wide at its narrowest point. 2. The pedestrian link within the basement connecting the two lift lobbies is long, curved and narrow and would not receive any natural daylight creating safety and security issues for the residents and visitors of the building contrary to P3 in Part 8, Section 1.5.3 of the DCP which states: 3. "P3 To maintain sight lines along pathways (i.e. avoid blind corners or hiding places)." 4. The design and location of the pedestrian entry limits the opportunity for casual surveillance from the apartments as the entry is below existing ground with no direct natural light creating significant safety concerns for occupants and visitors of the building contrary to the objectives and best design practices as specified in the 'Safety' section (Part 2) of the Residential Flat Design Code. The secondary rear entrance off Highview Lane to 1 Premier Street is via the fourth floor at the rear of the development. This does not allow casual surveillance of this entrance from the living areas of the apartments and does not provide direct access to the site facilities including letter boxes and storage facilities which are located within the basement of the building. This is not considered satisfactory as these facilities should be easily accessible for the occupants of the building. 1. Mr Darroch accepted that the entry arrangements, particularly the extended access corridor from the entry to the lift within the basement, are not ideal but it was a case of striking a balance between providing suitable access and protecting the Premier Street rock shelf. The applicant's intent was to minimise penetrations in the rock face and provide a single amalgamated basement. He noted that: 1. the area of most concern to Mr Donovan was within the secure perimeter of the proposed building which is a complex comprising only 13 units; ie. small enough that the occupants can reasonably be expected to know each other and it was therefore unlikely that any serious threat would arise in this situation; 2. the entry off Highview Lane would be a secure entry and is in fact likely visible from the apartments across the road; and 3. this concern of the Council would not be a reason to refuse the application. The Council agreed that this was the case. Findings on Safety and Security 1. I agree with the Council that the entry arrangements are not ideal but I accept that they are a consequence of the constraints of the site and, in particular the desire of the applicant to minimise impacts on the rock wall in providing alternative access to residents and visitors. 2. The Council accepted that the security of the entry arrangements was not a reason to refuse the applications and I agree. Neighbour Concerns 1. The only issues raised by the residents not otherwise addressed related to overlooking of 5 Premier Street, the geotechnical aspects of the excavation and removal of retaining walls, and the glare impacts of the roof. 2. In terms of overlooking, the parties and experts agreed that there would be no unacceptable overlooking of 5 Premier Street. The Council also advised that they were satisfied in terms of the geotechnical aspects of the excavation and proposed conditions, agreed to by the applicants, that required a full dilapidation survey and report on the visible and structural condition of all neighbouring structures within the 'zone of influence' of the required excavations and to require structural adequacy reports for adjacent development. This would also address the impacts from the removal of any retaining walls. 3. In terms of the glare impacts of the roof, this was addressed by proposed conditions of consent of both approvals to address the reflectivity of glazing and roofing materials. 4. I am therefore satisfied that these issues raised by the residents have been adequately addressed. ORDERS For the reasons set out above, the orders of the Court are: Matter No. 10461 OF 2014 1. The appeal is upheld. 2. Development Application 21/2014 for the demolition of existing structures and erection of a residential flat building at 1 Premier Street, Neutral Bay with shared basement, access and associated works at 3 Premier Street, Neutral Bay be approved subject to the conditions at Annexure A. 3. The exhibits be returned other than Exhibit A. Matter No. 10724 OF 2014 1. The appeal is upheld. 2. Development Application 233/2014 for the demolition of existing structures and erection of a residential flat building at 3 Premier Street, Neutral Bay with shared basement, access and associated works at 1 Premier Street, Neutral Bay, be approved subject to the conditions at Annexure A. 3. The exhibits be returned other than Exhibit A. The conditions contained in each Annexure A are different for the two matters as can be seen in the Orders accessed through the links below. Jenny Smithson ACTING COMMISSIONER OF THE COURT 10461 of 2014 Smithson (O) (737 KB, pdf) 10724 of 2014 Smithson (O) (659 KB, pdf) 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. Decision last updated: 02 July 2015