Jim Saada & Anor v North Sydney Council [2017] NSWLEC 1045

Land and Environment Court New South Wales

Medium Neutral Citation: Jim Saada & Anor v North Sydney Council [2017] NSWLEC 1045 Hearing dates: 25/1/2017, 27/1/2017 Date of orders: 09 February 2017 Decision date: 09 February 2017 Jurisdiction: Class 1 Before: Acting Commissioner Maston Decision: See [33] below Catchwords: Development Application; two storey extension of dwelling house; land adjoining heritage item in heritage conservation area; loss of views from dwelling unit on ground floor of heritage building; conditional consent granted. Legislation Cited: Environmental Planning and Assessment Act, 1979 North Sydney Local Environmental Plan 2013 North Sydney Development Control Plan 2013 Cases Cited: Tenacity Consulting v Warringah Council [2004] NSWLEC 140 Goyer v Pengilly [2015] NSWLEC 54 Category: Principal judgment Parties: Jim Saada (Applicant) Diane Saada (Applicant) North Sydney Council (Respondent) Representation: Counsel: M. Seymour (Applicant) Solicitors: Mr J Hones, Hones Lawyers Pty Ltd (Applicant) Mr M Pearce, North Sydney Council (Respondent) File Number(s): 2016/307006 Publication restriction: No

JUDGMENT 1. These proceedings are an appeal under s.97 of the Environmental Planning and Assessment Act 1979 (The Act) against the refusal by North Sydney Council of development application DA numbered 219/2016/1 for a two storey rear addition and extension to the dwelling house at 4A Claude Avenue, Cremorne on lot B DP 157790. 2. The DA Site has an area of 413.4m2, a frontage to Claude Avenue of 15.24m and a depth of 27.125m, Claude Avenue is relatively steep and the DA site, whilst level from east to west has a cross fall from north to south of approximately 2m. Views towards the Sydney City Skyline, The Opera House and Harbour Bridge are available from some parts of the dwelling. 3. The DA as lodged proposed that the rear extension was to consist of a rumpus room and WC at ground floor and two bedrooms, a study and en-suite on the first floor. The existing setbacks, relevantly, would have reduced the existing side boundary to the North from 2.58m to 1.1m, and the rear boundary setback on both levels from 7.83m to 1.5m. 4. Following notification to adjoining properties ten submissions were received. On 2 February 2016 the council raised concerns regarding heritage conservation, view loss, visual privacy, rear setbacks and shadows. On 12 September 2016 amended plans were submitted which reduced the bulk, scale and building footprint and increased the rear setback. Revised shadow diagrams were requested. The revised building plans dated 28 August 2016 provided an area described as 'new room' of 26m2 at the ground floor and on the first floor, a new bedroom of 15m2. The northern side setback is shown as 1.55m with a rear setback of 3m at ground floor level and 5m at first floor level. Five submissions were received and on 5 October 2016 a staff assessment report recommended approval. On 5 October 2016 the four member Independent Planning Panel of the Council unanimously refused consent for the following reasons: * The two storey rear addition to the northern boundary unreasonably and unnecessarily impacts views from the bay window of the heritage item of the adjoining ground floor apartment (Unit 1/6 Claude Avenue). The Panel considers there are alternative design solutions to achiece some additional floor space with a sensitive design that still allows for the views from the bay window of the ground floor apartment within the adjoining heritage item. The Panel considered that a ground floor extension may be acceptable on the northern side subject to the view/outlook being maintained, and stated that any revised scheme must have regard to the impacts on the adjoining heritage item which is a relevant consideration and the current plans demonstrate adverse impacts on this item. The Panel considered the concerns of other neighbouring property owners. However, these concerns were not considered to be matters that would warrant refusal of the application. 1. The notice of determination of the DA refusing consent was issued on 10 October 2016.