Jason Corporation Pty Limited v North Sydney Council [2005] NSWLEC 64

Land and Environment Court of New South Wales

CITATION : Jason Corporation Pty Limited v North Sydney Council [2005] NSWLEC 64

APPLICANT Jason Corporation Pty Limited

PARTIES : RESPONDENT North Sydney Council

FILE NUMBER(S) : 11213 of 2004

CORAM: Murrell C

Development Application :- Conversion of an existing warehouse to a commercial development with a residential component above with six townhouses. KEY ISSUES: Solar Access - Overshadowing Impacts - Bulk and Scale - Setbacks - Privacy - Streetscape.

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: North Sydney Local Environmental Plan

DATES OF HEARING: 3/02/2005 and 8/02/2005 EX TEMPORE JUDGMENT DATE : 02/08/2005

APPLICANT Ms M L Taylor, solciitor of Norman Waterhouse

LEGAL REPRESENTATIVES:

RESPONDENT Ms E Duenow, solicitor of Mallesons Stephen Jaques

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Murrell C

8 February 2005

11213 of 2004 Jason Corporation Pty Limited v North Sydney Council

JUDGMENT

1 This matter has come to me as consent orders. A development application was submitted to North Sydney City Council for 1 Cassins Avenue, North Sydney for the conversion of the existing warehouse building to a commercial development with a residential component above for six townhouses.

2 The matter was assessed by the council and the council refused the application for a number of reasons including amenity on the surrounding residential area, and whether the proposal was appropriate in terms of council's controls. At the time the matter was determined by council it is noted that the applicant had not demonstrated existing use rights.

3 When the matter came before me last Thursday council had also undertaken a s 82A review and council reconfirmed its previous decision to refuse the development application. It is noted there were amended plans prior to the 82A review with the proposal being amended to reduce a bedroom and to decrease the solar impact on the properties in Ridge Street to the south of the subject site.

4 By way of background it is noted that council further resolved on 20 December 2004 to grant delegated authority to the General Manager to determine the application, taking into account the following matters; that is: (a) The preliminary planning report prepared by Charles Hill, the Court appointed expert, and

(b) whether owner's consent is required for egress over strips of land on the southern boundary of the property and whether, following any expert views being expressed by the Court appointed expert consent should be granted or the matter should proceed to hearing.

5 When the Court met on site with the council and the applicant and the resident objectors the council advised that it now was proposing consent orders, or proposed consent orders, but there were a number of conditions that were outstanding.

6 The Court appointed expert, Mr Charles Hill, assessed the development application and in his opinion the proposed development is one that warrants approval.

7 The Court heard evidence from a number of residents on the view including: o Mr Gary Della from the corporate body of 22 Ridge Street; o Miss Stephanie Tavernor, 13/22 Ridge Street; o Jacqueline Adamsi, 49A West Street; o Aaron Ross, 49A West Street; o Mrs Chambers, 45 West Street; o Mr Cassins, 43 West Street, o Mr Edmonds, 522 Ridge Street; o Mr Vole, 47 West Street and o Mr Donovan, 51 West Street. 8 The Court took the opportunity of inspecting the subject site as well as having the opportunity of going on the roof of the existing building to experience the sight lines into the rear of the premises of the properties that face West Street.

9 In terms of the surrounding area, the subject site is surrounded to the west, north and south by residential developments, and to the east of the site there is the North Sydney Marist Brothers School. There is a relatively new development opposite the subject site in Cassins Avenue at No. 10 of a three to four storey apartment style townhouse development. To the west of the subject site are a number of properties facing West Street that are heritage listed and therefore the provisions of development within proximity of heritage items also needs to be considered. These properties include Mr Cassin's property, at 41-43 West Street; Mrs Chambers' property at 45; Mr Vole's at 47 and a property at 49 and Mr Donovan's at No. 51. It is noted that 49 has been subdivided such that the rear has been developed with a two-storey dwelling house and garage to Cassins Lane, constructed near the boundary.

10 The subject site is one that enjoys existing use rights and, as such, existing use rights mean that buildings can be altered, enlarged, and uses may be changed. It is noted from all the objections that were made to the council that the residents were particularly concerned about a development that did not comply with standards, or did not comply with council's planning controls. I will say, to preface my findings, that the planning controls do provide a framework to assess the application, but at the end of the day the existing use rights provisions prevail in terms of the Environmental Planning and Assessment Act, s 108. That does not mean that anything can be done on a site that has existing use rights but it is one that is guided very much by the merits of the development application.

11 Clearly the subject building, as we see it on the site today, is used for warehousing and it has very minimal setbacks to the boundaries, and that is an existing situation. If a new residential building was developed on the subject site the outcome may be somewhat different. While the role of the Court in these proceedings is to have regard to existing use rights I must also have regard to the impacts on adjoining properties, in particular the residential properties that surround the site.

12 The residential flat building to the south of the subject site, known as 'The Stanton', contains some 44 dwellings made up of mainly apartments and some townhouses. The Court was assisted by the experts, with respect to what the overshadowing impacts on those properties would be, and I asked for great care to be taken in this regard. The Court had the benefit of the Court appointed expert, the applicant's expert and council's Manager of Development Services. The units that were of concern were those of Miss Tavernor of unit No 13, and her sunlight would be reduced by some 45 minutes. She currently enjoys six hours of sunshine between nine and three, the period of the standard on 21 June, the winter solstice. It is noted that the other units, which do not enjoy the same extent of solar access will not be impacted in terms of the proposed development. The application was modified in this regard. And there are some lower units that receive relatively poor solar access, but this will not be further restricted by the subject development. 13 Returning to Miss Tavernor's unit, the 45 minutes reduced solar access is an impact, and the Court is not saying it will not be a noticeable impact, but this is not the test and in terms of council's own controls, I am satisfied that reducing the solar access to this unit would not warrant refusal of the development application as it will continue to receive sunlight for a greater period than council's requirements for all the other units there is little change in terms of the solar access and this was looked at in detail also.

14 Miss Tavernor was also concerned about the bulk of the building and the open sky that she currently partly enjoys, (although it is noticed that her balcony is set into the building such that there is a roof over her balcony), but she will continue to see sky from inside her unit, although reduced. However, I am satisfied that the proposed townhouses will not impact in an unreasonable way on the amenity of her dwelling and other dwellings in a similar location to warrant refusal of the application.

15 The Court understands that where there are developments proposed that people will naturally resist such developments, and it is important for the Court to fully appreciate what the impacts are in terms of a proper assessment.

16 The Court took a great deal of care in looking from the rooftop of the existing building to understand its relationship with both 'The Stanton', residential flat building, and the properties to the west. And I am also of the opinion that having regard to the site inspection and the evidence before the Court, in particular of Mr Hill the Court appointed expert, that the development application is one that does not create unreasonable impacts on the amenity of those dwellings to the west. In particular having regard to the separation distances from the units. It is noted that the proposed units are set back on the existing roof with planter boxes and terraces. The actual dwellings are also set back in the envelope of the building such that there will be no direct sight-lines to the dwellings, that would warrant concern in terms of impacts. I will also say that the separation distances of this development to the rear yards of those dwellings is one that would not warrant refusal. However, I have had particular regard to the concerns of the residents, including the fact that many are heritage buildings, but I am still satisfied that there will not be unreasonable privacy/overlooking impacts.

17 It was of some concern that the planter boxes of the proposed would be relied upon. I am satisfied that the vegetation in the planter boxes does not need to be relied upon because of the separation distances. Planter boxes on rooftops are not a panacea to privacy/overlooking concerns, and I must be satisfied without the vegetation that there will be adequate privacy to all the surrounding dwellings in considering the juxtaposition of this particular development.

18 For the glass of the commercial development; there was concern from the residents that there would be light spillage. That is light pollution, from the subject development in particular at night time and there was one proposal that there be louvres on the windows to the south of the building to ensure that there is no spillage of light. However I do not consider this is necessary. The applicant has agreed to install opaque, obscure glazing which will be fixed, and I am satisfied that the light spillage is not an issue that would warrant refusal. At times it will be apparent that there will be lights on in the building but it is not an issue that I consider will impact unreasonably on residential amenity. In this regard the council and the applicant have agreed to a condition in terms of glare from the commercial building and light spillage. I am satisfied that this condition on the proposed development is acceptable.

19 The current use of the commercial building is that of a warehousing/courier business, and the residents on the view were concerned that the difficulties and problems currently experienced would be exacerbated by the proposed development. I am satisfied that the conversion of the building to a commercial building with six residential units above will not create unreasonable demands in terms of traffic and parking. The car parking provision is one that is in accordance with council's controls and the addition of six residential units would not create unreasonable impact having regard to the capacity of the streets. And indeed this was not an issue that council pursued or pressed.

20 The townhouses are oriented in an east-west direction and the council officer's original assessment suggests that it would be preferable for them to have a north-south orientation. However, I agree with the Court-appointed expert that the east-west orientation, that is three of the townhouses face east and three face west and I am satisfied that this is the most appropriate orientation. If the north-south axis was used the units to the south would receive no sun; with an east and west orientation, whilst there is westerly summer sun to be controlled, nonetheless there are mechanisms to control same, but giving units a southern elevation does not provide the opportunity for any sun or solar access. Furthermore, and probably of more importance in this particular application, is that the building with units oriented to the south would in fact pose, or could pose, privacy problems in terms of the residential flat building known as 'The Stanton'. In this regard I consider that the amenity of the proposed units with the orientation shown in the plans is satisfactory and it, once again, is not a matter that would warrant refusal. I agree with the Court appointed expert this is in fact the best configuration for the subject site.

21 I have taken the opportunity during the adjournment to read the objections of the residents and it is noted that to the s 82A review and the amended plans there were some 27 objections received. One was in support of the development application. A similar number of objections were received in respect of the development application when it was originally submitted to the council. I have looked at those objections, as well and many were concerned with the zoning of the subject site. The zoning is Residential (c) and as such there was an expectation by some residents that it should be only a residential development or alternatively it should not be a mixed-use development. However, the applicant has the benefit of existing use rights.

22 The proposed building in terms of its configuration for privacy afforded to adjoining residential properties surrounding the site and the overshadowing impacts and the setback to the rooftop housing will mitigate against overshadowing; and the bulk and scale of the proposed development. I am satisfied that the proposed development with the setback of townhouses will not read as an overdevelopment of the subject site and the development will sit comfortably in this urban area.

23 The separation distances, as I stated, are much greater in many respects than one finds in urban areas of this density. Nonetheless I consider that great care must be taken in terms of ensuring there are no privacy/overlooking concerns for the properties in West Street. As such the balconies from the bedroom areas, that is the top level of the townhouses facing west, should be reduced such that they have a trafficable area of one metre width even though the bedrooms are a secondary use and there are already balconies off the main living area of the townhouses. I note that from the roof it is the same relative level for the terraces off the living rooms and in this regard I am satisfied that privacy/overlooking is not a concern. I think it is reasonable to reduce the balconies to the bedroom areas of those facing west. 24 The bedroom areas facing east are over the school grounds and I am satisfied that there are no privacy impacts that should be of concern in terms of the school. It is noted that the school originally submitted an objection to the development but there was no objection with respect to the s 82A plans. Nonetheless, I have had regard to what I could see from the rooftop in terms of the school and the relationship of the school main assembly area, and I am satisfied that there is no concern for privacy/overlooking that would warrant refusal.

25 The objectors' main concerns related to the privacy overlooking concerns from the development, the impact in terms of solar access, which I have addressed, and the resultant bulk of the building in terms of the additional two floors that will be constructed on the existing two-storey building to be converted to a commercial building.

26 As I stated earlier the Court was assisted by the Court appointed expert, as I stated, as well as council's planner and as well as the applicant's planner. The issues that were raised have been carefully assessed and I see no reason why the Court should not agree to approve the consent orders as agreed between the applicant and the council.

27 At the beginning of the proceedings there were a number of conditions that were in dispute. These have been further discussed and concerns of the Court have also been addressed. At the end of the day there are only two issues in dispute in terms of the conditions. One relates to the time period of 12 months for the deferred commencement condition to be satisfied; that is to ensure the easement or right of way over the strips of land which provide fire access to the building, or fire egress to the building, the council needs to be satisfied that this has been obtained before the consent would commence. In the Court's opinion this is appropriate and a 12 month period is considered reasonable. It is expected that council would use its best endeavours to ensure that the ownership of the land, or the easements, or the sale of the unowned land are attended to as quickly as possible, such that it does not delay the applicant. If the 12 month period is not met then the applicant has the opportunity of seeking an extension to that condition.

28 The other deferred commencement matter related to stormwater and drainage and the vehicle crossing design. The applicant does not oppose the deferred commencement for this issue.

29 The other condition that was in dispute was with respect to the operating hours of any future uses of the proposed commercial development. The applicant seeks 7am to 7pm. The council is of the opinion that a 7.30am start and a 7pm finish, Monday to Friday, is more appropriate. In terms of the use of the commercial building, in terms of the access to the car park, and in order to provide flexibility in working hours, I do not consider it is unreasonable to provide for a 7am start to 7pm. It would not be expected that every worker in a commercial building would start at 7am but it does provide for some flexibility, especially also having regard to the fact that cleaning is to be undertaken within the core hours as well.

30 The applicant was of the opinion that the balconies on the western side did not need to be amended. However, as I stated, and having regard to the view, I consider that a 1 m wide trafficable area would be appropriate and the residents in West Street should have no concerns about overlooking/privacy from a higher level. Furthermore, the separation distances are well in exceedence of what is normally recommended in terms of AMCORD and other guidelines.

31 The planter boxes were discussed at some length. The planter boxes' vegetation on the southern side is to be limited to a maximum of one metre mature growth to ensure that these do not result in further overshadowing of 'The Stanton'. With respect to the western side of the development that limit is not required. As I stated, one should not necessarily rely on planter boxes to provide the separation or filtering when it is on a rooftop. However, the separation distances in themselves are appropriate and adequate without relying on the planters. Planter boxes generally provide amenity for the dwellings that are proposed, as opposed to ameliorating overlooking.

32 On the basis of the Court's assessment the proposed consent orders are agreed to. Therefore the formal orders of the Court are: 1. The appeal in respect of the property known as 1 Cassins Avenue is upheld. 2. The development application submitted to North Sydney Council for alterations and additions to the existing two-storey warehouse building and conversion to a mixed development with commercial premises and six townhouses above is approved, subject to the conditions contained in annexure A. (Annexure A is as discussed above.) 3. The exhibits may be returned with the exception of 10 and B.

_____________________ J S Murrell Commissioner of the Court ljr

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