Modog Pty Limited v North Sydney Council [2017] NSWLEC 1476 (5 September 2017)

New South Wales Land and Environment Court

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Modog Pty Limited v North Sydney Council [2017] NSWLEC 1476 (5 September 2017)

Last Updated: 5 September 2017

Land and Environment Court New South Wales

Case Name:	Modog Pty Limited v North Sydney Council
Medium Neutral Citation:	[2017] NSWLEC 1476
Hearing Date(s):	29 – 30 August 2017
Decision Date:	5 September 2017
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	Directions, refer to paragraphs 49-51
Catchwords:	DEVELOPMENT APPLICATION: construction of a residential flat building; existing use rights; appropriateness of the building envelope; impact on adjoining heritage item.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Goldberg v Waverley Council [2007] NSWLEC 259; (2007) 156 LGERA 27 Stromness Pty Limited v Woollahra Municipal Council [2006] NSWLEC 587 Tenacity Consulting v Waringah [2004] NSWLEC 140
Category:	Principal judgment
Parties:	Modog Pty Limited (Applicant) North Sydney Council (Respondent)
Representation:	Counsel: Ms J. Reid barrister (Applicant) Ms K. Gerathy solicitor (Respondent) Solicitors: Pikes & Verekers Lawyers (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2017/75201

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. 339/16 for a residential flat building at 1 The Boulevarde, Cammeray (the site) by North Sydney Council (the Council).
2. The appeal was subject to mandatory conciliation on 13 July 2017, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act.
3. Leave was granted by the Court during the hearing for the applicant to rely on an amended proposal (exhibit L, “the proposal”) subject to the applicant paying the Council’s costs pursuant to s 97B of the EPA Act, as agreed or assessed, excluding the optional change to the proposal described as “amendment 5” (exhibit L).

Issues

4. The Council’s contentions can be summarised as:
   • The height, bulk and scale of the proposal is unsatisfactory with regard to what is permissible on adjoining and surrounding sites in the R2 Low Density Residential zone and the building envelope is not in keeping with the existing or desired future character of the locality.
   • The site coverage and landscape area is unsatisfactory.
   • There is inadequate separation between the proposal and the neighbouring dwelling, which would result in amenity impacts on the neighbour.
   • The extent of excavation is excessive and uncharacteristic of the area.
   • The proposal would have an adverse impact on the health and vitality of a number of significant trees.
   • The proposal would have an unacceptable impact on the heritage significance of the adjoining dwelling at 5 The Boulevarde.

The site and its context

5. The site is on the southern, high side of The Boulevarde and near the corner of Miller Street. The site slopes steeply from the rear of the site to the street with a fall of approximately 11m.
6. The site contains an existing 2 storey residential flat building on the upper portion of the site and garages at the street boundary. The maximum height of the existing building is RL 65.83 at the roof ridge.
7. The site is irregular in shape with a site area of 851.9sqm.
8. The site contains two mature Sydney blue gums, identified as tree 1 and tree 11. The site is traversed by a rock shelf that continues across 5 The Boulevarde.
9. Adjacent to the site, to the west, is a Council reserve with stairs between Miller Street and North Ave and a stand of mature Sydney blue gums.
10. The adjoining dwelling at 5 The Boulevarde is an inter-war Streamlined Moderne style house, with later rear additions, and it is elevated above the street on a steeply sloping site with a basement level bedroom below the ground floor of the dwelling.
11. The site overlooks the nearby suspension bridge over Tunks Park at Northbridge and the site is in a prominent location when viewed from the suspension bridge.
12. Development in the vicinity of the site includes dwellings at 1A-3 Pine Street, a residential flat building at 5-7 Pine Street and a duplex at 9 Pine Street, all to the rear of the site. The upper level dwellings in 5-7 and 9 Pine Street overlook the site and have views beyond the site towards the southern pylons of the suspension bridge, as well as views of surrounding vegetation and district views.
13. There are contemporary residential flat buildings on the opposite side of Miller Street. There are a number of inter-war residential flat buildings to the south of the site, some fronting Miller Street.

The proposal

14. Levels 1 to 3 of the proposal form a built base or platform projecting out of the hill (“the base element”) and the upper 4 levels of the proposal consist of a three storey masonry curved ‘moderne’ style building with an uppermost recessed element, the penthouse unit on Level 7, setback from each of the façades that form a masonry parapet edge.
15. The proposal consists of the following:
    • Level 1 is a basement level of parking with 14 car parking spaces including car stackers and a turning platform.
    • Levels 2 and 3 each contain one 3 bedroom unit.
    • Level 4 contains a 3 bedroom unit on the northern side with a terrace and planters over the apartment below, and a 1 bedroom unit with study to the rear.
    • Levels 5 and 6 each contain a 3 bedroom unit on the northern side and a 2 bedroom unit to the rear.
    • The uppermost level, Level 7, contains a penthouse 3 bedroom unit.
16. The maximum height of the proposal is RL68.85.
17. The landscaped area of the proposal is 337.21sqm (39.58%); the unbuilt upon area is 58.38sqm (6.85%) and the site coverage is 456.35sqm (53.57%) (exhibit L DA 402 E).
18. Amendment 5 in exhibit L does not amend the proposal but presents the option of removing the rear portion of the penthouse apartment.

Planning framework

19. The site is zoned R2 Low Density Residential pursuant to North Sydney Local Environmental Plan 2013 (LEP 2013) and residential flat buildings are not permissible in the R2 zone. The site benefits from “existing use” rights within the meaning of s 106 of the EPA Act. Section 108(3) of the EPA Act provides that an environmental planning instrument has no force or effect if it derogates from the existing use rights and as a consequence, care must be exercised in the assessment of the proposal to ensure that there is not a de facto application of the standards in LEP 2013 (Stromness Pty Limited v Woollahra Municipal Council [2006] NSWLEC 587 [89]).
20. The objectives of the R2 zone are:

• To provide for the housing needs of the community within a low density residential environment.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To encourage development of sites for low density housing, including dual occupancies, if such development does not compromise the amenity of the surrounding area or the natural or cultural heritage of the area.
• To ensure that a high level of residential amenity is achieved and maintained.

21. The height of buildings development standard for properties within the R2 Low Density zone in the vicinity of the site is 8.5m. There is no FSR development standard for those properties.
22. The adjoining Council reserve is zoned RE1 Public Recreation.
23. The suspension bridge and 5 The Boulevarde are both listed as local heritage items (items 18 and 20, Schedule 5 LEP 2013). The provisions of the heritage conservation clause at 5.10 of LEP 2013 include the objective of conserving the heritage significance of heritage items.
24. North Sydney Development Control Plan 2013 (DCP 2013) includes the following objectives relevant to a merit assessment of the proposal:
    • 1.3.1 O1 To ensure that the natural topography and landform are maintained;
    • 1.3.6 O2 To encourage view sharing as a means of ensuring equitable access to views from dwellings...;
    • 1.3.10 O1 To ensure that existing and future residents are provided with a reasonable level of visual privacy;
    • 1.4.1 O1 To ensure that the site layout and building design responds to the existing characteristics, opportunities and constraints of the site and within its wider context (adjoining land and the locality);
    • 1.4.6 Setbacks O2 To control the bulk and scale of buildings; O3 To provide separation between buildings; O4 To preserve the amenity of existing dwelling and provide amenity to new dwellings in terms of shadowing, privacy, views, ventilation and solar access;
    • 1.4.7 O1 To ensure the size of new buildings are consistent with surrounding, characteristic buildings and they are not significantly larger than characteristic buildings;
    • 1.4.8 P4 Where alterations and additions are proposed to any residential accommodation relying on existing use rights, they must not result in the material loss of views from other properties or public places, or material loss of privacy to other properties;
    • 13.4 O1 Ensure that new work is designed and sited so as to not detrimentally impact upon the heritage significance of the heritage item and its setting.
25. The Cammeray Neighbourhood area character statement in DCP 2013 includes the following relevant to a merit assessment of the proposal:
    • 4.2.1 Significant elements include rock outcrops and the suspension bridge over Tunks Park.
    • 4.2.3 Desired built form includes buildings not obstructing views from neighbouring properties, and buildings on sloping land designed to follow the slope of the land with minimum cut and fill.
26. The North Sydney Natural Area Survey 2010 identified the native plantings of the Council reserve adjacent to the site.

Public submissions

27. Five resident objectors gave evidence at the commencement of the hearing on site and the Court, in the company of the parties and their experts, viewed the site from two dwellings to the rear of the site and the adjoining dwelling to the east. The concerns of the objectors can be summarised as:
    • The height, bulk and scale of the proposal is excessive;
    • The excavation of the site is excessive;
    • The proposal will require the removal of a Cypress-pine, one of a pair, that frame the street elevation of the adjacent dwelling;
    • The proposal will impact on the amenity of the neighbouring dwelling, including overlooking of the rear yard from balconies on the eastern façade and overlooking the front bedroom window;
    • The height and bulk of the proposal when viewed from the rear yard of the adjoining dwelling will be imposing;
    • The proposed building envelope, particularly the upper level, will obstruct views of the pylons of the suspension bridge from the living areas and terrace of the upper level duplex at 9 Pine Street and from the windows in the northern façade to living areas of the apartment on the uppermost level of 5-7 Pine Street.
28. Amendments to the earlier iteration of the proposal made in exhibit L included the deletion of the balconies on the eastern façade of the proposal to address the privacy impact concerns of the neighbour at 5 The Boulevarde and the retention of the Cypress-pine located on the shared boundary.

Expert evidence

29. The applicant relied on the expert evidence of Mr James Lovell (planning), Mr Guy Paroissien (arboriculture) and Mr John Oultram (heritage). The Council relied on the expert evidence of Mr George Youhanna (planning), Ms Catriona Mackenzie (arboriculture) and Ms Lucinda Varley (heritage).

Consideration

Impact of the proposal on the adjoining heritage item at 5 The Boulevarde

30. The heritage experts prepared a joint report (exhibit 2) and gave their evidence on-site. The proposal in exhibit L included amendments in response to the evidence of the heritage experts, including the following:
    • The side setback on the eastern side of the driveway is increased to 1.5m and the driveway and building envelope is reconfigured to allow a the Cypress-pine on the shared boundary with 5 The Boulevarde to be retained;
    • The building envelope of the lower base element of the proposal is further setback on the eastern side to align with the north-western corner of the adjoining dwelling at 5 The Boulevarde;
    • The sliding operable privacy screens on the northern elevation of the base element of the proposal are now detailed to accord with the evidence of the heritage experts (exhibit L, DA 208 E) and the finish is bronze aluminium (exhibit L, DA 501 E).
31. The heritage experts agreed on the following and I accept their agreement:
    • The principal view and the public’s appreciation of 5 The Boulevarde is obtained from the public domain directly in front of the dwelling;
    • The demolition of the existing garage structure is desirable as it would provide an opportunity for landscaping at the front of the site, which would provide a more appropriate visual setting for the adjoining heritage item.
32. The heritage experts disagreed on impact of the scale of the proposal on the setting of 5 The Boulevarde. In Ms Varley opinion, the seven storeys of the proposal is overbearing in comparison to the diminutive scale of the heritage item and will overwhelm the neighbouring house and detrimentally impact on its heritage significance. Ms Varley is of the view that the uppermost floor of the proposal should be deleted and the upper floor of the base element setback to match the level over, to reduce the overall scale of the heritage item.
33. In Mr Oultram’s opinion, the top floor of the proposal is inset from the parapet to limit the visible scale of the building when viewed from the adjoining heritage item. He is of the view that the top floor will have a very limited impact on the public setting of the heritage item.

Impact of the proposal on neighbours’ views

34. The planning experts agreed that the uppermost level of the proposal will impact on the views of the pylons of the suspension bridge from the living areas of both the apartment on the uppermost level of 5-7 Pine Street and the duplex on the uppermost level of 9 Pine Street. Both dwellings enjoy views of the pylons of the suspension bridge over the site as well as district views. The experts agreed that the proposal will obstruct views of the right pylon when viewed from 5-7 Pine Street. In Mr Lovell’s opinion, the impact on the view from the terrace of 9 Pine Street would be minor.
35. The application was criticised for not including a photo montage for the assessment impacts of the building envelope on views from dwellings to the rear of the site. The applicant had height poles erected on the site to indicate the height and position of each end of the roof ridge and their accuracy was confirmed by a surveyor’s report (exhibit F). A qualified and experienced planner or architect or a person with expertise in a related field should not require a photo montage to make an assessment of the impacts of a proposal on views. Photo montages are taken from a single viewpoint and that is not how we experience the built environment and so they can be manipulative. I am satisfied that the height poles, coupled with verification of their accuracy, was sufficient to make an informed assessment of the impact of the proposed building envelope on the views from the upper level dwellings at 5-7 and 9 Pine Street.
36. In Mr Lovell’s opinion, it is difficult to assess the impact on views by the proposal in relation to the planning principle in Tenacity Consulting v Waringah [2004] NSWLEC 140 [29], because the application relies on existing use rights and the reasonableness of the proposal cannot be determined.
37. The views from the dwellings at 5-7 and 9 Pine Street, of the pylons of the suspension bridge, will be significantly obstructed by Level 7 of the proposal. Those views, from living areas, are highly valued. They are obtained across the site and over the existing residential flat building, as a result of the steep topography of the locality.

Impact of the proposal on existing trees on and in the vicinity of the site

38. The arboricultural experts prepared a joint report (exhibit 3) and gave their evidence both on-site and in Court. The proposal in exhibit L included amendments in response to the evidence of the experts, as follows:
    • Tree 11 is of high significance. The structural root zone of tree 11, located near the eastern boundary in line with the rear elevation of 5 The Boulevarde, is primarily located in a north-south direction from the trunk and the roots do not extend beyond the footings of the eastern elevation of the existing residential flat building. The eastern façade and internal layout was amended in exhibit L in response to this evidence to rebuild the eastern elevation in the same position as the existing and to retain the existing footings, with the intention of augmenting them structurally on the internal face as required. A structural engineer’s written opinion that this approach is viable was tendered (exhibit D).
    • The driveway and building envelope is reconfigured to allow a 3m radius tree protection zone (TPZ) around the Cypress-pine on the shared boundary with 5 The Boulevarde, in order to retain the tree.
    • The detailing of the western façade and footing, shown in exhibit L, is in response to the agreed evidence of the experts, in order to avoid disturbing the roots of the stand of trees on the Council reserve (exhibit L, DA 205 E).
39. The experts agreed that tree 2, located on the Council reserve adjacent to the western boundary of the site, is of high significance. If this tree is to be removed by the Council as a result of recent damage, caused during the laying of cables in the Council reserve and unrelated to this appeal and this applicant, then they agreed the replacement tree should be the same species.
40. The experts agreed that tree 1, positioned on the western side of the site atop the retained terrace that accommodates the existing building, is a tree of high significance. I agree with Mr Parossien that the position of tree 1, near the centre of the site, would place a considerable constraint on any redevelopment of the site as a residential flat building if it were to be retained.
41. The experts agreed that a Sheoak, located on the Council reserve near the street front, will need to be removed to accommodate the excavation of the basement. They agreed that this tree has a moderate landscape value and that it is acceptable to remove it and replace it with an Angophora, which will grow approximately 20m high. I accept the agreement of the experts in relation to the removal and replacement of the Sheoak with an Angophora and the applicant’s submission that the Court has power pursuant to s 39(2) of the LEC Act, as the tree removal is a part of the overall proposal, to exercise the functions of the Council and consent to its removal and replacement (Goldberg v Waverley Council [2007] NSWLEC 259; 156 LGERA 27 [42]).

Submissions

42. During the hearing, I raised the possibility of the deletion of Level 6, whilst retaining the Level 7 penthouse as Level 6, with the experts. The applicant submits that if I am minded to hand down directions to amend the proposal, the Level 7 penthouse should be deleted by condition, instead of Level 6. The applicant further submits that directions to amend the proposal would be preferable to a refusal.

Findings

43. I am satisfied on the basis of all of the evidence before me that the Council’s contention regarding the unacceptability of the height of the proposal is made out. The seven storey building envelope is contrary to the existing or desired future character of the locality. I accept the applicant’s submission that the site is located in a varied context; on the boundary of the R2 Low Density zone and that there are a number of residential flat buildings within the R2 zone, close to the site. The excessive height of the proposal, however, on a site perched high above Miller Street, is not justified by the variety of development in its context. The residential flat buildings on the opposite side of Miller Street, in the R3 Medium Density zone, do not create a dialogue with this site, as they are low scaled when viewed from the site because they orient away from Miller Street and their height and scale are only appreciated when viewed from the north, further down Strathallen Ave and from the suspension bridge.
44. The overall height of the existing residential flat building, perched high up on the upper level of the site, creates a decorous relationship with surrounding development and the relationship of that development to the dramatic topography of the locality. Building mass located the rear of a site that slopes steeply towards the front boundary is particularly conspicuous and generally has a much greater visual impact on its locality, particularly on views over the site from higher up the hill. On a steeply sloping site, it is not simply a matter of identifying the greatest height of a building over the existing ground level, it is a matter of where the building mass is located on the site. Given the close proximity of the proposal to the rear boundary, a two storey rear elevation and penthouse element, similar to the height of the existing building, is appropriate and characteristic of the higher density development in the locality on sloping sites.
45. The impact of the uppermost level of the proposal on views of the pylons of the suspension bridge, combined with the impact of the overall height of the proposal on the setting of the neighbouring heritage item and the topography is such that it warrants, in my view, the deletion of a level of the proposal.
46. It is appropriate to retain the setbacks of the penthouse level, as its overall form diminishes the scale and imposition of the proposal and I agree with Mr Oultram’s assessment of the relationship between the penthouse and the masonry form; that the inset of the uppermost floor limits the visible scale of the building when viewed from the adjoining heritage item.
47. I am satisfied that the deletion of Level 6 would satisfactorily resolve the contentions regarding the bulk and scale of the building envelope, following the amendments made in exhibit L. I do not accept the applicant’s submission that it is unreasonable to contain the amended development to the height of the existing building. The amended development will have a significantly larger overall footprint and gross floor area than the existing building, as well as a large basement, car stackers, internal access and generous apartments.
48. As the building envelope is otherwise an appropriate redevelopment of this site with the benefit of existing use rights, I am satisfied that the unbuilt upon area, site coverage and landscaped area are acceptable. The building setback on the eastern side maintains the existing setback towards the rear of the site. The amendments to the proposal made in the exihibit L plans addressed the issue of the relationship between the base element and the adjoining heritage item.

Directions

49. The applicant is to amend the proposal in exhibit L (excluding amendment 5), in accordance with the findings of this judgment, as follows:
    • Level 6 is to be deleted and replaced with Level 7, so that the ridge of the amended development is reduced to RL 65.55.
    • Note added to identify the “raised planter” on the eastern side of the terrace of unit 2.01.
    • The driveway is to be positioned or detailed so as to preserve the agreed 3m TPZ from the trunk of the Cypress-pine on the eastern boundary, to Mr Parossien’s satisfaction.
    • The landscape plan is to be amended to be consistent with the amended proposal and the plantings noted in condition A6 are to be noted on the plan (or alternative plants agreed) and the notes in condition B4.
50. The applicant is to file and serve the amended plans, with updated revision numbers, no later than 19 September 2017.
51. The Council is to amend the Conditions of Consent (exhibit 7) to include the updated revision numbers in condition A1 and is to file and serve the conditions no later than 26 September 2017, including the following:
    • I accept the applicant’s version of condition B5 requiring written confirmation from a suitably qualified geotechnical engineer to confirm that the excavation will be fully contained on the site. The Council’s deferred commencement condition AA1 is to be deleted. It is appropriate that this requirement be imposed as a matter to be addressed prior to the issue of a construction certificate.
    • Deferred commencement condition AA2, requiring amendments to the proposal, is to be deleted.
    • Condition A6 is to be deleted.
    • Condition B1 is to be the applicant’s version (exhibit E).
    • Condition B4 is to be amended to be consistent with the updated landscape plan.
    • Conditions C15 and C16 are to be the applicant’s versions.
    • Condition C20 is to delete tree 1 and to add the Cypress-pine.
    • Condition C22 is to be the applicant’s version.
    • Condition C37 is to be deleted.
52. Liberty to restore on 2 days’ notice. Final orders will be made in chambers.

____________

Susan O’Neill

Commissioner of the Court

**********

Amendments

05 September 2017 - Amendment to Respondents name & experts name in para. 32