Ahmadian v Ku-ring-gai Council

CASES CITED: Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Mackenzie v Ku-ring-gai Council [2008] NSWLEC 1525

APPLICANT Mr I. Hemmings, barrister Instructed by Atkinson Vinden Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Mr P. Marincowitz, solicitor of DLA Phillips Fox

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 This is an appeal against the refusal by Ku-ring-gai Council (the council) of a development application (DA776/07) under the Environmental Planning and Assessment Act 1979 (the Act) for a dual occupancy development on lot 5 DP 31547, 21 Vale Street, Gordon (the site).

2 The dual occupancy retains the existing dwelling (dwelling 1) on the site fronting Vale Street and proposes a new, detached dwelling off Craiglands Avenue (dwelling 2).

3 The key dispute between the parties centres on whether the proposal will adversely impact significant canopy trees on the site to the extent that the landscape character of the locality will be altered. Council is concerned that the separation between the houses is inadequate and that the proposed dwelling 2 would result in excessive bulk when viewed from dwelling 1. Council also contends that the amount of private open space for each dwelling is inadequate. The site and its locality 4 The site has frontages to Vale Street and Craiglands Avenue. It is irregular in shape with an area of about 1097 square metres, and a steep fall of 14 metres from Craiglands Avenue to Vale Street. The existing dwelling is a part one/part two storey brick house with a single garage. It is set back about 14m from Vale Street.

5 The site, from the rear of the existing house to Craiglands Avenue, is heavily vegetated, with a canopy of tall trees. The understorey in the upper part of this area of the site is predominantly dense growth of non-native weedy species. On the lower part, closer to the existing house, there are a number of sandstone exposures. Between these areas, down slope from the large blackbutt (Eucalyptus pilularis) tree (Number 28), there are indications of previous artificial terraces.

6 The canopy includes species characteristic of the Sydney Turpentine - Ironbark Forest (STIF), an Endangered Ecological Community listed on Part 3 of Schedule 1 of the Threatened Species Conservation Act 1995 (TSC Act). It was common ground that the vegetation on the site is correctly classified as STIF, notwithstanding the extensive modifications of the understorey and ground layers.

7 The Court visited the site and had the opportunity to view the broader locality. The locality is characterised by large allotments with one and two storey dwellings of various architectural styles in landscape settings, which include canopy trees.

8 The adjoining dwelling to the north (19 Vale Street) is two storeys fronting Vale Street on an allotment which extends to Craiglands Avenue. The adjoining dwelling to the south (4 Craiglands Avenue) is a part one/part two storey brick dwelling fronting Craiglands Avenue on an allotment that extends to Vale Street. 9 The overall impression of the character of the locality is of houses set in predominantly native forest, although along street frontages, and in some blocks, there is a range of introduced trees species, some of which are large mature individuals. Progressing in a southwest direction along Craiglands Avenue from the site there is, in the vicinity of 32 Craiglands Avenue, a change in the character of the vegetation from remnant modified STIF to gully forest. On many of the blocks, the house is set within a cleared area with the majority of large trees, native and exotic, towards the boundaries. Natural understorey layers are generally absent.

10 The western side of Vale Street also presents as heavily vegetated, in contrast to the much more cleared eastern side of the street. South of the site, and running up to Vale Street, and down slope from Craiglands Avenue is a Council Bushland Reserve (Blackbutt Reserve) which continues southward toward Lady Game Drive and Lane Cove National Park.

11 The site is situated immediately opposite the junction of Vale and Dumaresq Streets. Approaching from Dumaresq Street the trees to the rear of the existing dwelling form a visually prominent feature. View lines from Vale Street to either side of the site afford very limited views of the vegetation to the rear of the property.

12 Given the presence of building, the variable health of canopy trees and past clearing, the views from Craiglands Avenue are not of a uniformly dense canopy, rather there are gaps and changes in density, but nevertheless the overall impression of the locality is dominated by the canopy of trees.

Planning framework 13 The site is zoned Residential 2(c) under cl 23 of Ku-ring-gai Planning Scheme Ordinance (KPSO). The proposed dwelling does not comply with the height control in cl 46(2) of KPSO. The Applicant has submitted an objection under State Environmental Planning Policy No 1 (SEPP 1). Schedule 9 of KPSO provides aims and objectives for residential zones.

14 State Environmental Planning Policy No 53 - Metropolitan Residential Development (SEPP 53) is also relevant. Clause 3(1) of SEPP 53 provides:

This Policy aims to encourage the provision of housing in metropolitan areas that will: (a) broaden the choice of building types and locations available in the housing market, and (b) make more efficient use of existing infrastructure and services, and (c) reduce the consumption of land for housing and associated urban development on the urban fringe, and (d) be of good design. 15 Clause 3(2) of SEPP 53 provides how the aims are to be achieved. Clause 5(2) states that the policy prevails over any other planning instruments if there is an inconsistency. The parties did not raise any inconsistency, although Mr Hemmings, for the applicant, questioned the weight to be given to Schedule 9 of the KPSO. We have given it little weight in our assessment. 16 Part 3 of SEPP 53 applies to dual occupancy development. Clause 15 of Part 3 provides the following objectives:

(a) to create opportunities for two dwellings to be developed on a single allotment of land, and (b) through the other provisions of this Policy, to ensure that dual occupancy development is: (i) designed and assessed with a full understanding of the opportunities and constraints of each site, and (ii) designed and assessed having adequate regard for the design principles contained in Part 5. 17 Clause 19 of Part 3 provides development standards for dual occupancy development, which include a minimum allotment size of 600sqm for two detached dwellings and a maximum floor space ratio (FSR) of 0.5:1. The parties agreed that the proposal met these standards. 18 Part 5 of SEPP 53 includes design requirements, which aim to encourage good design in residential development. Clause 32 requires that consent cannot be granted unless the proposed development demonstrates that adequate regard has been given to the following principles which relevantly include:

a) Streetscape The proposed development should: (i) contribute to an attractive residential environment with clear character and identity, and

h) Visual bulk The proposed development should, where practicable, maintain reasonable neighbour amenity and appropriate residential character by: (a) providing building setbacks that progressively increase as wall heights increase to reduce bulk and overshadowing, and (b) using building form and siting that relates to the site's land form, and

…….. 19 Ku-ring-gai Development Control Code - Dual Occupancy (the Code) was adopted by Council on 8 April 2003 after a period of public consultation. The Code is intended to compliment the provisions of SEPP 53 and consistent with the principles established by McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 the Code is to be given weight in so far as it is not inconsistent with SEPP 53.

20 The Code relevantly includes Objectives, Assessment Criteria and Design Requirements and Controls for dual occupancy development. The areas in dispute between the parties principally related to Visual Bulk (s 4.9) and Landscaping and Open Space (s 5). The evidence 21 During the site inspection, the Court heard evidence from objectors. Mr and Mrs McPherson, the owners of the property immediately south of the proposed dwelling, were concerned by the smaller setback from Craiglands Avenue of the proposed dwelling (relative to their property), the proposed parking platform, the height and bulk of the proposed dwelling, and loss of habitat.

22 Mr Will, who lives immediately across Craiglands Avenue from the site, was concerned about fragmentation of the bushland habitat, the bulk of the proposed dwelling in proximity to its adjoining neighbour, the parking arrangements and the setting of a precedent which could lead to a domino effect of further habitat losses.

23 Mr Davis who lives in Craiglands Avenue was concerned about the impacts of the proposal on the aesthetics of the streetscape. He suggested that the street was used for walking, not just by local residents, in mornings and evenings and at lunchtime, and was valued for its shade and the attractiveness of the treed setting. He was also concerned that approval for the project could set a precedent for further developments reducing tree cover in the area.

24 Ms Chant who lives in Craiglands Avenue, was concerned about the loss of trees, but suggested that a precedent could advantage other future proposals for development, including her property which, she stated was largely unconstrained by trees and of sufficient size to be subdivided into four allotments. 25 The Court heard expert planning evidence from Ms B Pendlebury, for the council and Mr N Juradowitch, for the applicant. Mr I English, for the council and Ms C MacKay, for the applicant, provided arboricultural evidence. Mr D Fanning provided ecological evidence on the impact of the proposal on the STIF community. Council did not present any evidence on this issue but required Mr Fanning for cross examination. The issues 26 Council's contentions 1 (Adverse tree impacts), 2 (Impact of significance to the STIF threatened species) and 3 (Streetscape) raise overlapping issues.

Endangered ecological community 27 Ms MacKay has mapped the distribution of canopy trees. This indicates that on the part of the site where dwelling 2 is proposed there are 15 endemic or native trees of which 9 are to be removed because of their current condition or impacts of the proposal. Six endemic or native trees are proposed to be retained but the arborists disagree about the long term survival of three of these trees. There are also three exotic canopy trees (Jacaranda mimosifolia) which were to be retained. During the hearing, the applicant proposed to remove two of these trees to be replaced with indigenous species.

28 The trees mapped were those of sufficient size to be covered by the Tree Preservation Order (TPO). The majority of the trees mapped formed part of the STIF Endangered Ecological Community. Smaller trees, even if they were indigenous species forming part of the STIF community (for example the Polyscias sambucifolius pointed out to the Court on the view) were not mapped. Neither of the arborists' reports nor the Flora and Fauna Assessment Report and Statement of Evidence of Mr Fanning, provide a complete list of the flora on the site. 29 Mr Fanning agreed that STIF was present on the site. In his Flora and Fauna Assessment Report Mr Fanning assessed the proposed development against the tests in s 5A of the Act, and concluded that there would be no significant impact on STIF. Mr Fanning concluded that there was an 'absence of a functional natural plant community or native ecosystem' and that there was a 'lack of any meaning ecological function'.

30 Mr Marincowitz, for the council, asked Mr Fanning to explain his use of the term 'community'. Mr Fanning responded that the endangered ecological community was more that just the canopy trees, but encompasses all the species in the site, including the soil biota.

31 Mr Marincowitz asked Mr Fanning to comment on the contribution of the vegetation on the site to ecological connectivity, and in particular, whether there was linkage to Blackbutt Reserve. Mr Fanning was of the view that connections in the ground and understorey layers were at best tenuous, while the birds utilising the canopy were common urban species. We note that the utilisation of the canopy by birds contributes to the 'aesthetic' or 'ambience' of the locality, and was valued by the objectors.

32 The utilisation of the canopy ands its connectivity are not matters which are in any way specific to STIF. Mr Fanning considered the wider ecological impacts of the proposal, and concluded that the development was 'unlikely to impose any unacceptable or unreasonable impacts on the natural environment', arguing that the site 'is not a significant element of the natural environment' and that it does 'not currently provide a connection between any area of native vegetation in the vicinity'.

33 In part, Mr Fanning's conclusion was dependent on his understanding that the development would retain most of the tree canopy. However, Ms MacKay's report indicates that the proposal involves the removal of a number of canopy trees, which are characteristic of STIF.

34 Mr Hemmings submits that the removal of the trees is acceptable as the Council's policy in relation to trees has two objectives, "retention" and "refurbishment", which together aim for a long term presence of a healthy "treescape". While the proposal involves the removal of trees it also proposes replanting. 35 The planting of STIF tree species may address 'refurbishment', however, Mr English raised concerns that the proposed replacement canopy trees were in an environment that was prone to suppression by existing trees. Even if the trees thrived it would be some years before they could contribute to the canopy.

36 The initial landscaping plan involved planting a range of species, including a number of STIF species. There was agreement by the experts that this plan was not appropriate and a revised plan was made available during the hearing that increased the proportion of STIF species. However, discussion indicated that this version of the plan was not final and that further refinement was needed.

Impact on trees 37 The arborists disagreed on whether the retention of trees 26, 28 and 34 was feasible. Mr English's concerns about the retention of other trees were largely resolved by amendments to the stormwater line, conditions and staged construction (trees 15, 16, 17 and 38).

38 Trees 26 and 34 are Sydney Red Gums (Angophora costata) and tree 28 is a Blackbutt (Eucalyptus pilularis). Tree 28 is the tallest tree on the site. The crowns of the three trees form a substantial part of the site's canopy as viewed from Dumaresq Street, and are also significant components of the Craiglands Avenue and Vale Street "treescape".

39 Eucalyptus pilularis is not listed as a characteristic species of STIF in the Final Determination. However, paragraph 2 of the Final Determination indicated that the list of characteristic species is not exhaustive of the total species composition of the community; other species may occur at low frequency, or only at particular sites. E. pilularis on the site may be an example of such a species, or, as Mr Fanning suggested, it could represent an intergradation between STIF and Blue Gum High Forest, another endangered ecological community in the municipality in which E. pilularis is a characteristic canopy element. On site, the arborists were in agreement that tree 28 was in the order of 70 years old. E. pilularis can therefore be regarded as a natural component of the vegetation on the site.

40 The retention of trees 26, 28, and 34 is envisaged in the proposal. There will be excavation close to all three trees. This raises issues about which the arborists remain in disagreement. Severing of roots could affect the stability of the trees and water and nutrient uptake. There could also be alteration to drainage conditions around the root systems. Both arborists agreed that Angophora is particularly sensitive to root zone disturbance.

41 During the course of the proceedings aspects of the building construction and the proximity of proposed excavation were modified, but Mr English remained of the view that even with these improvements, excavation would occur within the applicable Tree Protection Zones in the British Standard BS5837.

42 Mr English considered that the proposed method of construction, which involved bulk excavation, strip footings and concrete floors, was inappropriate to this site due to its slope and number of trees. He had recommended changes to mitigate the impact of the proposal, such as raising the floor level near the media room to permit pier construction, which were accepted by the applicant. However, due to the proposed levels any opportunity for further changes to address Mr English's concerns were limited. In his opinion, if this part of the site were to be developed, there should be no bulk excavation or strip footings within 6m of trees 26, 28 and 34 and any construction within 4.5m should be cantilevered. He considered a "pole" house to be the method of construction that would minimise impacts on the trees. 43 The arborists agreed that there would be a decline in all three trees as a result of the proposal. In the case of the Angophoras (trees 26 and 34), Ms MacKay was of the view that the decline could be managed and that the trees would still have a long and useful life, Mr English did not share this optimism.

44 Tree 28 gave rise to the greatest disagreement. Mr English felt that the stability of the tree would be severely impaired, and that there was a high probability of terminal decline within a short time. He was of the view that not only would the tree not survive it should not be retained. He stated that the tree is in such close proximity to the house and the proposal involved excavation within 1.5m and 2.4m of the tree's trunk that the risks associated with failure were so great as to be unacceptable. If the proposal were approved the tree should be removed prior to construction.

45 Ms MacKay was of the opinion that root severing would not generate the risks that Mr English anticipates, and that the decline could be managed. She anticipated a useful life of perhaps 7-10 years. During this period a tree planted to replace tree 28 would be sufficiently established so that tree 28 could be removed. The replacement tree would not however, be as tall as the original nor would it be in the same location of tree 28 around which the house has been designed. A tree in this position could only be planted after tree 28 is removed.

46 We note that the agreed draft conditions, filed after the conclusion of the hearing, include a condition (4A), which approves the removal of tree 28.

Streetscape 47 The loss or reduction of canopy elements has the potential to have impacts on the streetscape. The Court heard from the objectors on site that the streetscape was a particularly valued component of the aesthetic and amenity values of the locality.

48 Mr Juradowitch and Ms Pendlebury agreed that tree canopy is a major feature of the streetscapes of Craiglands Avenue and Vale Street but they disagreed on the impacts on the streetscape resulting from the removal of trees on the site.

49 Mr Juradowitch considered that proposed landscaping and replacement trees, together with the existing trees proposed to be retained and the low profile of the proposed house would ensure that "trees and vegetation will remain dominant over built form" in Craiglands Avenue. In relation to Vale Street, Mr Juradowitch considers that the trees on the rear of the site are a secondary element of the Vale Street streetscape and that the reduction in tree canopy when viewed from Vale Street would have a "limited and temporary streetscape impact".

50 In Ms Pendlebury's opinion the proposal would result in excessive tree loss that cannot be replenished. This would impact on both the Craiglands Avenue and Vale Street streetscapes. She accepts that trees can be removed on a particular site but that the overall character of the locality should be maintained. She agreed that the trees fronting Craiglands Avenue are a backdrop to Vale Street but considers that they are still readily visible and an important feature in both the Vale Street and Dumaresq streetscape. She was particularly concerned about the loss of continuous tree canopy from Blackbutt Reserve through Vale Street to Craiglands Avenue. She stated that as no trees were being retained between the dwellings, Dwelling 2 would not be softened or screened from Vale Street and Dumaresq Street, which will impact on the streetscape.

Findings 51 The objectives for dual occupancy development in cl 15 of SEPP 53 include a requirement that through the other provisions of the policy dual occupancy development is designed and assessed with an understanding of the constraints and opportunities for each site. Clearly the site is constrained by its slope and the presence of a number of canopy trees that form part of the STIF community.

52 Mr Hemmings submits that the house has been designed with a desire to retain as many of the trees on the site as practicable. In particular, the house has been designed around tree 28 to enable its retention. While we accept that this may be the intent of the design we do not accept that this will be realised through its implementation.

53 In the prediction of tree survival, there can be no certainty. Even trees, which on visual inspections appear healthy, could have hidden defects; healthy trees can be blown over in major storms, or be struck by lightening. There is an inherent background risk of tree failure that is part of living in a heavily treed suburb. However, where human activity is likely to increase the risk of failure the question arises as to whether the increase is acceptable.

54 We accept the evidence of Mr English that due to the extent and proximity of excavation to tree 28 its survival, even in the short term, is in doubt and raises issues of safety and ongoing care and maintenance. Even on the evidence of Ms MacKay the tree will decline and is likely to require replacement in 7-10 years.

55 The regime proposed by Ms MacKay for tree 28 would impose a considerable and expensive burden on the applicant, with a need for regular inspections by a qualified arborist, possible pruning as a result of these inspections, and the removal of a large tree at the end of its useful life, possibly only a few years after the development is completed. We do not consider that the retention of tree 28, given these risk and constraints would be reasonable. However, we do not accept that the constraints imposed by the current design justify the removal of tree 28. The impact on this tree results largely from the extent of excavation in close proximity to the tree. It would appear that an alternate design could eliminate the need for excavation. The ground floor level is set down from Craiglands Avenue and floor to floor heights in the proposal are generous. There is scope for the lower ground and ground floor levels to be raised to limit excavation without markedly changing the overall height of the dwelling or adversely impacting on the streetscape. 56 The same conclusion can be drawn in relation to Trees 26 and 34. While these trees may survive, they will decline; whether this is to the extent envisaged by Mr English or Ms MacKay is not certain. However, an alternate design could also limit excavation and adverse impacts on these trees.

57 The retention of large canopy trees in close proximity to buildings imposes constraints on both the tree and the building. The TPO recognises that there is an inherent conflict between large trees and buildings. While the imposition of a covenant may remove the technical constraint that the TPO does not apply to trees within 3m of a building (see Mackenzie v Ku-ring-gai Council [2008] NSWLEC 1525) it does not remove the inherent conflict.

58 Trees impact on buildings, whether this is through minor inconvenience such as dropping leaves or debris or more substantially through falling limbs or structural damage from roots. While these conflicts may be able to be managed, the question is whether it is reasonable to impose such constraints upon a development and whether management measures, such as pruning of trees, will place a burden on the development and also reduce the significance of the trees to be retained.

59 In considering the retention of large canopy trees it is not simply a matter of determining whether a tree can technically be retained but also whether its retention is meaningful. Large canopy trees generally need large areas of space around them. This was apparent on the site view where we observed that the majority of the canopy trees were in the street verge or on the front and rear areas of allotments at a distance from the house. Clearly there needs to be a balance in the assessment of the location of a development and the retention of a tree. However, the starting point for such an assessment needs to be an acknowledgment that trees are an important factor in the character of Ku-ring-gai. Clause 32(a)(i) of SEPP 53 requires a finding of satisfaction that adequate regard has been given to whether the proposal would "contribute to an attractive residential environment with clear character and identity". The Code also recognises the tree canopy of Ku-ring-gai. Section 5 of the Code includes the following objective:

ii) To maintain or enhance the predominant tree dominated landscape quality and tree canopy of Kuring-gai. 60 The Assessment Criteria in s 5.1.2 for Tree Retention and Refurbishment states:

a) Development on a site should avoid excessive site utilisation by maintaining a reasonable proportion of the site as a soft landscaped area to ensure the predominant landscape quality of Ku-ringgai and the particular locality in question is maintained and enhanced. 61 The Design Requirements and Controls for s 5.1.2 provide:

All existing trees over 5m in height should be maintained on the site. The trees should be clearly identified, with their height and species on the landscape plan for the site. All tree management and preservation should be strictly within the guidelines of Ku-ring-gai Council Tree Preservation Order…… 62 The Design Requirements and Controls for s 5.1.2 also specify a minimum number of trees over 13m that a site should support depending upon area. The site would require 7 canopy trees. The site, post development, meets this criterion. However, we do not accept that this enables all canopy trees to be removed provided the minimum number specified for the site, either through retention or refurbishment, is achieved.

63 Nor do we accept that all trees over 5m can be retained. The Design Requirement and Control in s 5.1.2 needs to be tempered by an assessment of the health, significance and ecological value of an existing tree and the constraints that its retention places upon a development. Nevertheless it is the starting point for an assessment and indicates that removal of trees needs to be justified.

64 The concerns about the removal of trees relate to their visual significance and their general ecological/habitat role, which is part of the character of Ku-ring-gai. An additional issue is that the STIF community present on the site is an endangered ecological community, the protection of which needs to be considered.

65 No data were provided on the total species composition of the site, nor on ecological processes. To collect data on ecological processes would be expensive and time consuming. In most circumstances, and certainly for this site, it would be an unreasonable expectation that applicants should provide site specific data on ecological processes. However, the presence of juveniles of characteristic STIF species, which was observed on the view, indicates that some important ecological processes are still occurring and that this stand of STIF potentially retains viability. The proposal does not demonstrate an understanding of the constraints imposed by the presence of STIF community nor that adequate regard has been given to retaining the STIF community and to ensuring its ongoing viability by replacement planting through the implementation of an adequate landscape plan. However we find that the impact on the STIF community on this site would not of itself warrant refusal of the application.

66 The removal or decline in the canopy of trees may also have visual impacts on the locality. The removal of 10 (including tree 28) of the 15 endemic or native canopy trees and the decline in the canopy or removal of two (trees 26 and 34) of the remaining five trees proposed to be retained will change the appearance of the site. This change will not be mitigated to any great extent by the replacement trees proposed. We accept that of itself change to the character of a particular site is to be expected, the question is whether the change will maintain and enhance the landscape quality the locality to the extent anticipated by the planning controls.

67 Mr Hemmings submits that the change to the character should be assessed in the context of the locality, rather than the site, and drew attention to 6 Craiglands Avenue. The original house on this site had recently been replaced and there were no trees between the house and the street. The result was not in keeping with the rest of the street, but Mr Hemmings submits the impact on the streetscape was slight, Craiglands Avenue still, overall, presenting as being set in an attractive tree dominated landscape.

68 The overall locality "treescape" is made up of component parts. While it is true that the loss or absence of aesthetically valued features from one or a few sites may have a relatively small detrimental effect on the streetscape of a locality, as more sites are affected a tipping point will be reached when the overall streetscape is impacted upon. Cumulative impacts would need to be considered.

69 Further the extent of change to an individual site needs to be considered. The development of 6 Craiglands Avenue replaced an existing house and did not remove trees. While the character of the site has changed through the construction of a much larger and arguably inappropriate house, the extent of change to the landscape character is not significant. 70 We find that the extent of tree removal on the site will change its landscape character to the extent that it will impact on its visual catchment and the landscape quality of the locality and for this reason the does not satisfy cl 32(a)(i) of SEPP 53 and the Objective in s 5 of the Code. For this reason the application must fail.

71 Arguably the reduction in the landscape qualities of Craiglands Avenue consequent on the development would be less significant and mitigated by replacement trees. However, approaching the site along Dumaresq Street, the tree canopy is a dominant visual focus. The proposed reduction in canopy would be obvious, and if trees 26, 28, and 34 do not survive or have canopy decline then there would be a much more severe visual impact that would change the landscape quality of the locality.

Visual bulk impacts on Dwelling 1 72 Ms Pendlebury and Mr Juradowitch agreed that part of the rear of the proposal does not comply with the height control in cl 46 of the KPSO. They also agree that part of the proposal does not comply with the minimum building separation distance of 7m in s 4.9.1 of the Code. The separation varies between a minimum of 6.4m and a maximum of 10.6m. The purpose of the setback control is to provide adequate privacy and amenity. The planners agree that the only impact on amenity was the visual bulk of the building. They held different opinions as to whether the impact was acceptable.

73 The planners held different opinions on whether the neighbourhood amenity in cl 32 (h) of SEPP 53 applied within dual occupancy developments or only to adjoining developments. Although they agreed that the impact of dwelling 2 on the amenity of dwelling 1 was a relevant consideration.

74 Ms Pendlebury considers that the height and the setback will adversely impact on the amenity of dwelling 1, by presenting excessive bulk to the area of private open space. She stated that the lack of separation was exacerbated by the level change between the two dwellings. In her opinion the upper floor should be further setback or the building lowered. A split level design would better relate to the topography of the site and would reduce the height of the undercroft which added to the overall height and bulk of the dwelling. This building form would better relate to the site's land form which is a consideration under cl 32(h)(b) of SEPP 53.

75 Mr Juradowitch considered that the part of the building that was closest to the existing dwelling was only 6m wide and would have an acceptable impact. Further he stated that due to the proximity of dwelling 1 to the rock shelf, the height of dwelling 2 would not be easily observed and that the view from the open space area of dwelling 1 was towards the north not to the dwelling at the rear. He considered that landscaping would largely screen the proposal from view.

Findings 76 We accept Ms Pendlebury's evidence. Dwelling 1 is very close to the rock shelf that separates the dwellings with a marked change in level. Dwelling 1 provides a very a limited area of private open space with an outlook to the rock shelf and the rear of the site. The amenity of this area will be adversely impacted upon by the visual bulk of the proposal. The change in level, which results from the rock shelf and the sloping site, will exacerbate this impact. The control in s 4.9.1 of the Code is a minimum standard which may need to be increased when considering the particular constraints of a site, including topography. We do not accept that the length, screen planting or alternate views to the north will mitigate the impact of the bulk of the proposal.

77 Further we find that the proposal does not demonstrate that adequate regard has been given to the principles in cl 32(h) of SEPP53, particularly the building form does not does not relate to the site's land form. A proposal which stepped down the site would present lesser bulk and achieve better neighbourhood amenity.

Private open space 78 The objectives for private open space in s 5 of the code are:

xi) To provide private open space which meets user requirements for outdoor activities. xii) To provide private open space that is clearly defined, useable and meets requirements for privacy, access, outdoor activity, solar access and planting. 79 The Assessment Criteria for Open Space Provision in s 5.1.5 are:

a) The siting of private open space areas should give consideration to outlook, natural features of the site and neighbouring buildings and common open space areas (if applicable) in order to maximise the use of this area. b) Private open space areas of each dual occupancy dwelling should be of a sufficient dimension to meet the needs and requirements of the dwelling's residents and to accommodate both outdoor recreation needs as well as providing space for service needs such as clothes drying and domestic storage. 80 Ms Pendlebury and Mr Juradowitch agree that the proposed open space for dwelling 2 does meet the Design Requirement and Control in s 5.1.5, in particular the requirements that private open space be located at ground level with direct access off living areas, that it be no steeper than 1 in 8 and that balconies and terraces above ground level do not constitute private open space. The planners did not agree whether the proposal met the Objectives or Assessment Criteria for private open space.

81 Mr Juradowitch considered that the controls in the Code are relevant to flat or gently sloping sites. Strict application of the Code would restrict dual occupancy developments on sloping sites or require extensive cut and fill and be inconsistent with SEPP 53. In Mr Juradowitch's opinion the proposed north facing deck off the living area and the outdoor walking/ sitting area would meet the objectives of the private open space control. He recommended a change to the site area of dwelling 2 to provide an area of relatively level open space.

82 Ms Pendlebury considered the size of the proposed decks were inadequate to meet the open space requirements of the development. The outdoor area was not easily accessible and for it to be usable as open space there would be pressure for the area to be level. In her opinion the steepness of the site and the number of trees are a significant constraint on development and the rear of the site was unsuited to dual occupancy development. She considers that the site may be better suited to an attached dual occupancy within the footprint of the existing dwelling.

83 The planners also disagreed on the adequacy of the private open space for dwelling 1. Mr Juradowitch considered the rear area of open space for dwelling 1 was adequate and that the front area could be adapted to provide additional open space.

84 Ms Pendlebury considered the bulk of dwelling 2 would adversely impact on the amenity of the rear area of outdoor open space of dwelling 1 and the open space at the front of the dwelling was not private and to adapt it may result in it being uncharacteristic of the area.

Findings 85 We do not accept that the lack of level private open space at ground level would of itself warrant refusal of the application. The Assessment Criteria in s 5.1.5 require that the siting of private open space consider factors such as outlook and natural features. It also requires that the open space should be of sufficient size to meet the needs of the residents. A north facing deck with outlook over trees and direct access to living areas could provide usable private open space and meet the objectives of the control. However, we share Ms Pendlebury's concern that an area of less than 25sqm may not be adequate to be the primary open space for a dwelling of this size. A split level proposal with the upper floor set back would provide greater opportunity for usable open space and would also reduce the bulk of the dwelling when viewed from the rear open space of dwelling 1. The rear of dwelling 1 is currently the area utilised for private open space for this dwelling. The area is restricted by its proximity to the rock shelf and the change in level, however, it provides adequate amenity. Any future development of the rear of the site should not reduce the amenity currently enjoyed by this area.

Orders 86 The orders of the Court are therefore: 1. The appeal is dismissed. 2. The development application (DA776/07) for a dual occupancy development on lot 5 DP 31547, 21 Vale Street, Gordon is refused. 3. The exhibits, except Exhibit 3, may be returned.

      Annelise Tuor Dr Paul Adam
      Commissioner of the Court Acting Commissioner
      ljr of the Court

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