Allaby v Ku-ring-gai Council

CASES CITED: Double Bay Marina v Woollahra Council [2009] NSWLEC 1001 Super Studio v Waverley [2004] NSWLEC 91

APPLICANT Mr S. Kondilios, solicitor of Maddocks Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Mr A. Pickles, barrister Instructed by Ebsworth Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10880 of 2008 Mark & Susan Allaby v Ku-ring-gai Council

JUDGMENT Background 1 This appeal was lodged against council's refusal of a development application for the demolition of an existing dwelling and subsequent construction of a new 2-storey dwelling at 29 Allard Avenue, Roseville Chase. The proposed dwelling is situated generally on the footprint of the existing dwelling and comprises: o Upper level; bedroom, en-suite, deck and ancillary rooms, o Ground floor level; living rooms opening onto elevated, north facing terraces adjacent to an elevated 9m x 3m pool, with an exposed wet edge that overhangs the existing rock shelf. Also on this level are ancillary rooms, a bedroom opening to a courtyard and lanai and a detached double garage. o Lower level; bedroom, bathroom, media room, wine cellar and other ancillary rooms. 2 A number of contentions were identified, which are summarized as follows for convenience: o Amenity and environmental character compatibility, with particular reference to the visual impacts of the pool component in the context of the rock ledge. o Impact on the natural environment, with particular reference to the amount of excavation of the natural sandstone on the site. The site 3 This site is situated on the western side of Allard Street. It has an area of 1492 sq m and a street frontage of 21.63m. The existing dwelling is situated towards the southern boundary of the lot, atop a significant sandstone ledge. The land generally falls from the southwest to the northeast to an extent of approximately 12m over the ledge.

4 The site is characterized by an overgrown and neglected landscape setting with mature trees and shrubs within massed garden beds. An ephemeral watercourse, located between the existing garage and the dwelling, dissects it. A major sewer line follows the alignment of this watercourse and restrains development in this location.

5 The site adjoins another residential property to the north, No 31 Allard Street, which is at the base of the exposed rock ledge. Sections of the sandstone shelf have collapsed over time, leaving piles of relatively large boulders in this area.

6 Adjoining the site to the north is a reserve, which features a continuation of the exposed rock ledge and cliff face. Towards the northern boundary there is a waterfall element. This reserve fronts onto the circuitous extension of Allard Avenue and there are attractive views of the park, cliff face and waterfall available from the lower levels of Allard Avenue. Planning controls 7 The following controls are relevant: o Ku-ring-gai Planning Scheme Ordinance (KPSO); under which the property is zoned Residential 2(a) and the development is permissible with consent. o DCP 38 - Residential Design Manual. o DCP 31 - Access. o DCP 40 - Waste Management. o DCP 43 - Car Parking. o DCP 47 - Water Management. o DCP 56 - Notification. The evidence 8 The expert evidence in this matter is contained in the joint report (Exhibit 3) as presented by: o Mr G Bolton, Council executive assessment officer. o Mr G Kotze, Consulting geotechnical engineer for council. o Mr I Glendinning, Consulting town planner for the applicant. o Mr G Young; Consulting geotechnical engineer for the applicant. 9 Other experts participating in the proceedings included Mr P Meyer, the project architect and Mr D Herald, the applicant's architect.

10 The main issue in this matter concerns the proposals suitability in terms of its amenity impacts and compatibility with the existing environmental character of the area, particularly the visual impact of the elevated pool. In the first instance, the council's submission is that the proposed development does not satisfy the general aims and objectives of the FPSO in respect of the subject site.

11 The general aims for the residential zones are: (a) to maintain and where appropriate, improve the existing amenity and environmental character of residential zones; and (b) permit new residential development only where it is compatible with the existing environmental character of the locality and has a sympathetic and harmonious relationship with adjoining development. 12 The relevant objectives include: (c) any development or work shall maintain or encourage replacement of tree-cover whenever possible to ensure the predominant landscape quality of` the Municipality is maintained and enhanced. (e) all new dwelling houses and additions to existing dwelling-houses are of a height, size and bulk generally in keeping with that of neighbouring properties and, where larger buildings are proposed, they are designed so as not to dominate and so far as possible to harmonise with neighbouring development; … 13 During the course of the appeal proceedings, conferencing was undertaken by the parties, resulting in some detailing amendments to the building design, to better satisfy the controls. I understand these amendments to the dwelling component are generally acceptable, except for the lower level bedroom/ancillary area excavation and the pool structure at the front of the building. This component is considered to impose an unreasonable impact on the natural landscape feature of the existing sandstone rock ledge, thereby not demonstrating sufficient respect for the natural topography of the site.

14 The assessment criteria for impacts on the natural landscape are contained in DCP 38, wherein cl 3.1.6 provides that: Development proposals shall not unreasonably intrude or otherwise impact upon natural features in the landscape, particularly on ridge-tops, rock formations, water courses, sloping sites, vegetation or bushland either located on-site or on adjoining property

15 The associated design requirements endeavor to achieve this criteria by: o preserving existing natural features, o designing to reflect the slope of the land. It is desirable to leave steeply sloping parts of the site in their natural state… 16 In the context of these controls, it is apparent to me that the determination of the outstanding issues in this appeal involves an assessment of the following 5 discrete components comprising: i. The overall landscaping component, ii. The 2-storey dwelling house component, iii. The lower ground floor section, in terms of excessive excavation and internal amenity, iv. The pool impacts associated with its proximity to the rock ledge, v. The entry proposals associated with the driveway.

Landscaping 17 The planners addressed this component on the basis of the proposed landscaping works contained in the Rolling Stone Landscapes plan. They agreed in the joint conference that the proposed landscaping treatment (except the area near the pool) is satisfactory. In this regard, I note that the applicant also intends to remove a significant amount of weed infestation on the rock shelf and I consider this should result in an enhancement of the landscape quality by exposing considerably more area of the sandstone wall face. I rely on the planner's agreement that this landscaping component is satisfactory.

Dwelling design 18 As I noted previously, a number of detailing changes have been made in response to the issues raised by council. The new dwelling predominantly covers the footprint of the existing dwelling that is to be demolished. This is somewhat inevitable because of the constraints imposed by the position of the prominent rock shelf and location of the watercourse and sewer.

19 However, in locating the new dwelling in this location it appears that careful attention has been given to the respective setbacks and location of the upper level bedroom area, so as to minimize adverse impacts on views, privacy and solar amenity of neighboring properties.

20 In the absence of any challenge by the council experts, I am satisfied that the amended, 2-storey elements of the dwelling design is of an attractive contemporary style that reasonably satisfies the relevant siting controls and objectives, notwithstanding minor setback encroachments.

Lower ground level . 21 Apart from this, there was disagreement by the planners about the acceptability of the lower ground area due to the amount of excavation required to achieve the desired floor space for the media room, bedroom and other ancillary rooms. In part, Mr Bolton's position was that this amount of floor area was excessive and consequently necessitated an excessive amount of rock excavation, which placed at risk the retention of the rock ledge. He says this does not comply with the DCP excavation controls. Also, that the rooms at this level would have a poor level of amenity due to the proximity of the window openings to the back of the excavated rock ledge.

22 However further consideration was given to these concerns during the hearing. The location of the rock ledge face was accurately determined and the lower level floor layout revised. The revisions are contained in exhibits G and J. They show that with careful excavation of the back of the rock ledge, a minimum setback of 1.5m to the building wall is achieved.

23 Furthermore, I understand from the agreed structural engineer's evidence that this is sufficient setback to maintain the structural integrity of the part of the rock ledge and I rely on this opinion.

24 Importantly, the building revisions now incorporate a bank of higher level windows along the northeast elevation to allow reasonable solar access to the rooms at this level. The setback also allows direct pedestrian access to the courtyard off the bedroom. Accordingly, I am satisfied that these rooms will have reasonable amenity. Also, that because of their position and significant separation from the viewing positions from the lower levels of Allard Ave, the visual and streetscape impact is acceptable. Pool component 25 The pool component is the most contentious component due to the visual impacts of the overhanging pool and wet ledge. However, I note that during the process of the appeal, amendments were made to reduce these adverse visual impacts. One significant amendment involved the deletion of the spa adjacent to the pool.

26 The impacts concerns arise because of the relatively prominent location of the pool atop the rock shelf, with its pier foundations in front of the rock face. This notwithstanding the proposal to screen the under croft are with, timber cladding and complimentary screening landscaping bedded in a constructed sunken planter.

27 Consequently, Mr Glendinning supports this amended proposal, as he considers it demonstrates reasonable satisfaction of the controls.

28 Notwithstanding these amendments however, Mr Bolton maintained his concerns about the height of the pool and its proximity to the northern boundary because of: o amenity impacts to the dwelling below (No 31), o adverse visual impacts of the overhanging pool, o loss of privacy to the adjoining property to the north, o aesthetic devaluation due to loss of view of the existing natural rock outcrop, 29 In determining these competing positions, a view was undertaken and visual impact assessments made from different locations. The most obvious viewing opportunities are from the lower levels of the reserve adjacent to Allard Ave and also from the rear living area of No 31 Allard Ave.

30 For these subjective visual impact assessments, I have taken into consideration that the proposed dwelling location and the 10m long pool section in particular, atop the rock ledge is significantly separated from the viewing positions along the lower part of Allard Ave. Furthermore, that the views towards the pool section are generally in an oblique direction from common vantage points, as compared to the more direct and very attractive primary views of the landscaped reserve, its rock shelf and waterfall.

31 Nevertheless, the view of the rock ledge will be noticeably disrupted by the protruding pool and wet ledge. This extends some 3m beyond the face of the ledge and incorporates various support piers. Whilst the proposal is to screen this under croft area by timber slat screening and planting, it still results is an adverse impact on the predominant natural rock ledge feature, in my assessment.

32 Insofar as the zone objectives allow some discretion, it is on the basis that the development does not dominate the site and harmonises with adjoining development. In my opinion, the rock shelf is a significant natural feature that warrants careful retention, on the basis of minimal building intrusions. The extent of the overhanging location of the pool necessitates some form of covering of the under croft, which will consequently cover the rock face.

33 In the circumstances, I am not satisfied that the introduction of the more formal timber screening element, albeit with associated screening, is an adequate response to the development controls, which strongly discourage intrusions upon significant natural features.

34 On the basis of these concerns, I have considered the submissions regarding the necessity for a pool of this magnitude in this sensitive location and the availability of alternative locations. It seems to me that taking into account the relatively large sitout area (4.5m x 12.5m) and lanai (4.5m x 4.5m) adjacent to the pool, that some adjustment of these areas could reasonably be undertaken to accommodate a pool that does not unreasonably intrude onto the rock shelf.

35 Whilst such alternative pool may be visible from the lower areas, or other available viewing positions, nevertheless the undercroft area could remain open and continuity of the rock shelf maintained, as encouraged by the DCP. If any protrusion was required, then consideration could be given to the appropriateness of a cantilevered structure to maintain the openness of the rock ledge. 36 This general approach is be consistent with the intent of the planning principle set out by Roseth SC in Super Studio v Waverley [2004] NSWLEC 91. The Senior Commissioner said: 15. Several planning principles are relevant to the determination of this appeal. The f irst is that the acceptability of an impact depends not only on the extent of the impact but also on reasonableness of, and necessity for, the development that causes it. For example, the privacy impact of a second-storey side window in an area of two-storey buildings should be accorded a higher threshold of acceptability than the impact of a second-storey balcony in a house that already has three other balconies.

Entry driveway 37 The proposed landscaping incorporates an entry front wall treatment that has a height of up to 2.6m adjacent to part of the driveway. The applicant contends that this is consistent with the landscaping theme of extensive native planting and that the wall will encourage this planting and stop light spillage.

38 However, Mr Bolton says that the proposal is for 3 sections of the wall, some of which are in the front setback areas and it is out of character in the area. He does not accept the applicant's position that the fence is an attractive feature that defines the entry to the property in a way that also offers wildlife protection.

39 My assessment of these competing positions is that the provisions of cl 3.1.6 are relevant, where preference is given to the preservation of natural features so that the development does not dominate the surrounding area. On this basis, I accept Mr Bolton's opinion that the proposed entry wall up to 2.6m high and partly within the setback area, will have a dominant effect, thereby significantly devaluing the natural vegetation character. Accordingly, I rely on Mr Bolton's opinion that the maximum height of the entry fence should be 1m above the driveway level. Conclusion 40 Having considered the evidence and undertaken a view, I am satisfied that this amended proposal merits conditional consent. It appears to me that the 2-storey dwelling design is of a contemporary form, which mainly utilises the footprint of the dwelling to be demolished. Whilst there are some minor non compliances with set back controls, nevertheless the new dwelling should result in a comfortable fit with the developable area above the rock ledge. As such, it provides clearance to the watercourse passing through the site and does not impose unreasonable impacts on the neighboring properties.

41 Insofar as concerns were raised about the extent of rock excavation for the lower level, I am satisfied to rely on the geotechnical engineer's agreement that the proposed excavation of up to 1.5m can be undertaken without significant risk of destabilisation of the rock face. On this basis, a reasonable level of amenity will be afforded to the rooms on this level. Therefore, I consider it reasonable to exercise the discretion available in the DCP.

42 However, I note the qualifications identified by the geotechnical experts that considerable care is required in the way the rock is cut and removed so that undue vibration is avoided to prevent destabilization. In these circumstances, I consider it reasonable to incorporate a deferred commencement condition requiring a detailed geotechnical investigation and provision of an associated excavation report, incorporating a construction management plan, for council's approval prior to the other conditions coming into effect.

43 As I have noted, the inclusion of the swimming pool atop the rock shelf is the main issue in this application. The decision as to whether the pool is to be allowed involves the resolution of the competing private and public interests. I have referred to the principles stated in Super Studios and I am not convinced of the necessity for the proposed pool in this location.

44 Consequently, I am satisfied that if the pool is an essential component of this development there are alternative locations, which more reasonably respect the exposure of the rock shelf, as stipulated in the DCP. In my opinion, this would likely represent a more appropriate balance of the competing interests. Accordingly, I do not consider the pool component merits consent.

45 In the ultimate, I accept that the visual character for this area is one that reflects and enhances the existing treed landscape character and where new development is to preserve and enhance the natural features. In this case, the vegetation is significantly degraded.

46 Therefore, I am satisfied that the development will significantly improve this situation and substantially maintain the exposure of the rock shelf, providing the pool, as proposed is deleted. In this regard, I note the submissions regarding public interest considerations stated in Double Bay Marina v Woollahra Council [2009] NSWLEC 1001, but discount these because the principles are not adopted by the Court. Instead, I am satisfied in this case that a reasonable balance is achieved by the deletion of the pool element.

47 I am satisfied the amended development reasonably complies with the general aims and objectives and DCP requirements for the residential zones in maintaining and enhancing the predominant landscape quality and features, so as to merit conditional consent. Court orders 48 The Court intends to make the following orders subject to satisfactory resolution of the conditions of consent. 1 The appeal is upheld. 2 Development consent is granted to DA 0587/08 for the demolition of the existing dwelling and outbuildings at 29 Allard Avenue, Roseville Chase and the construction of a new dwelling and garage in accordance with the conditions in Annexure A. 3 The exhibits be returned except for 4, K and L.

      R Hussey
      Commissioner of the Court
      ljr

20/05/2009 - deletion of the words "and Pool", changes made to exhibits returned. - Paragraph(s) Order 2 & 3

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