Avondale Properties Ltd v Ku-ring-gai Council

State Environmental Planning Policy No. 53 Rural Fires Act 1997 LEGISLATION CITED: State Environmental Planning Policy No. 53 Environmental Planning and Assessment Act 1979

CASES CITED: Datum v Botany [2003] NSWLEC 62

DATES OF HEARING: 11/04/2004 EX TEMPORE JUDGMENT DATE : 04/12/2005

APPLICANT Mr S Kondilios, solicitor SOLICITORS Maddocks

LEGAL REPRESENTATIVES: RESPONDENT Mr P Marincowitz SOLICITORS Phillips Fox

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11544 - 11548 of 2004 Avondale Properties Ltd v Ku-ring- gai Council

1 This was five class 1 appeals Nos. 11544 to 11548 of 2004 inclusive between Avondale Properties Pty Limited and Ku-ring-gai Council in regard to the refusal of the proposal involving five appeals at No. 208 Comenarra Parkway, Turramurra.

2 The site was a long rectangular allotment 152 m x 15½ m. The street was on a ridge and the land sloped down to the south where its rear boundary abutted the Lane Cove National Park. There was dense bush in the park and a few large trees on the site at the rear boundary. The rest of the allotment had little vegetation except grass.

3 There was a neighbouring house on a similar allotment on the west at No. 210. On the east there were two allotments. One fronted the street and had an existing house, the other was a vacant battleaxe lot.

4 The original proposal consisted of five houses with subdivision. Negotiations between the parties had reduced this to three houses, the one closest the street on one allotment and the other two on a rear battleaxe lot. The proposal was permissible with consent under State Environmental Planning Policy No. 53. The proposals were lodged at a date in compliance with the savings clause of that instrument. The proposal was in three stages.

5 The first stage was to be dealt with under appeal No. 11544 of 2004 and proposed a house at the street end of the existing allotment and another towards the rear of the lot. Stage 2 was to be dealt with under appeal No. 11545 of 2004 and would create two Torrens title lots, one for each house. Stage 3 was to be dealt with under appeal No. 11546 of 2004 and proposed a second house on the rear allotment. Appeals Nos. 11547, 11548 of 2004 were to be discontinued.

6 The amended proposal had been allowed in the appeals by his Honour Bignold J. It had been re-exhibited for public comment and only one objection had been received from the owner and resident of No. 210 Comenarra Parkway, a Mrs Elliot. Her daughter, a Mrs Hardy, gave oral evidence on her mother's behalf. 7 There was a Court appointed town planner agreed by the parties. He was Mr N Ingham who had conferred with the parties and recommended changes and provided several reports.

8 There were also expert reports from bushfire experts, Mr Swain for the applicant and Mr Eady. The latter was also a Court appointed expert by agreement of the parties. Changes were recommended for greater bushfire safety.

9 The Court was told the reduction of the development from five houses to three had been brought about by responses to the following matters: 1. Giving the street front house an acceptable front setback matching the house on No. 208 Comenarra Parkway. It should be noted the house on No. 210 was set back much further from the road. 2. The required 60 m setback from the rear boundary to provide an asset protection zone for bushfire protection. A s 100B approval under the Rural Fires Act 1997 was tendered from the Rural Fire Service and the conditions therein were agreed by the parties to be imposed. 3. The resulting increase in the private open space available to each house gave a much better amenity for future residents. 4. By spacing the houses further apart and lowering their height, solar access concerns were overcome. 5. By deleting the rooftop terraces and amending window treatments the privacy impacts on neighbours were reduced to acceptable levels. 6. The proposal now had a driveway that extended down to the rear boundary with a turnaround suitable for a bushfire fighting truck. There was also to be a 10,000 litre rainwater tank installed near the rear house with a delivery pipe and valve down to the turnaround to allow connection of fire hoses. 7. The stormwater soakage trenches and retaining wall at the lower end of the site were to be redesigned as sought by the council. A condition was to be imposed in regard to this. 10 With these changes the respondent did not tender the various statements of issues in the five appeals and said the only remaining matters were for the Court to consider the objections of No. 210 Comenarra Parkway and some additional concerns of Mr Ingham.

11 Mrs Hardy reiterated her mother's concerns, namely: 1. The fear of damage to her house due to excavation in rock for foundations of the proposal. 2. Shadow impacts of boundary vegetation proposed on her eastern windows. 3. Shadow impacts of the new houses proposed on the same places which were the living, dining, kitchen, meals and family room windows. 4. Privacy impacts on the same places from windows of the proposed houses. 5. Her mother was the owner of the vacant battleaxe lot on the east of the proposal and there was concern about impacts on its future development. 12 Mr Ingham and Mr Minto, town planner for the applicant, had considered these impacts and Mr Ingham gave oral evidence during the hearing supplementing his written reports. My conclusions as a result are as follows.

13 In regard to the fear of damage to the structure of No. 210 there were numerous outcrops of bedrock on the site and Mrs Hardy said her mother's house was built on rock. One could see the tops of the footings along the east wall of No. 210. That indicated rock is probably only 300 or 400 mm down.

14 The subject houses were not proposed to be excavated to any great extent. It would largely be as for No. 210, that is, excavation to obtain a good seating for the house foundations. This was normal construction in the locality and should not lead to structural damage at the neighbours' houses.

15 A draft condition proposed for Exhibit 6 would require a survey of the adjacent houses prior to any construction and a re-survey and repair of any damage at the end of construction. Such a condition was a normal requirement and acceptable.

16 In regard to shadow impacts, the lowering of the original houses proposed, and the greater spacing between them had reduced the original impacts. I asked Mr Ingham if he had checked the shadow plans to make sure they were accurate. He assured me that they were accurate.

17 The shadow diagrams indicated that due to the north-south orientation of the allotments it was only the 9 am shadow and before, in midwinter on 23 June, that had any impact on the No. 210. At that time the dining and lounge east windows of No. 210 would be in shadow but the kitchen, meals and family room windows and northern veranda would be in sun. The family room and northern veranda would be in sun for the whole day. 18 The east windows of the living rooms were slit windows only and not intended for views. The main living windows and balcony were to the south towards the view.

19 The northern courtyard of No. 210 between the family room and the garage were largely shaded by their own garage at 9 am. The proposal increased that shadow at 9 am but it extended only to just before the house. The shadow reduced after 9 am and was gone from No. 210 altogether by about 11.30 am. Thus for the majority of a winter's day No. 210 had no impact from the proposal and at other times of the year the impact would be even less. This was acceptable based on State Environment Planning Policy No. 53 and the council's own controls.

20 In regard to boundary vegetation and shadow impact, it is not usual for councils or the Court to factor that in, because vegetation is often deciduous in winter or provides dappled sunlight through the canopy.

21 In this case the landscape drawing had a note saying screen shrubs must have a mature growth height of 4 m, but in conflict with this an examination of the planting legend on the subject drawings showed that none of the boundary plantings would exceed two to 3 m, so the impact on No. 210 would be minimal and acceptable.

22 The note on the drawing was changed by agreement of the parties to set a 2.5 m maximum height for screen vegetation along the western boundary. 23 On privacy, Mr Ingham had an opinion on the privacy of the rear yard of No. 208 Comenarra, and any future house on the vacant battleaxe lot to the east. He proposed a condition for the two houses proposed at the rear, to require 4 m high vegetation along the east boundary of the proposed driveway at positions opposite each set of living room windows of the proposal where they faced towards the eastern neighbours. The parties accepted that.

24 Mr Ingham also noted that shadows of the proposed houses on its eastern neighbours in midwinter late afternoon, still left substantial areas of the rear yard of No. 208 in the sun at 4 pm, and left a suitable area on the battleaxe lot in sun such that a future house there could be designed around it.

25 Further in regard to privacy impacts, on the eastern windows of No. 210 the applicant agreed to conditions suggested by Mr Ingham. He sought frosted glass and fixed bottom sashes to the western windows of the middle house of the three proposed on the subject site.

26 All these matters of concern, and the means of mitigating their impacts appeared to me to deal with the neighbours' objections and Mr Ingham's additional concerns in satisfactory ways, and there was no reason sufficient to refuse the amended proposal.

27 The applicant raised one last matter being draft condition 51 in stage 1 and condition 53 in stage 3. Both related to a cash bond or bank guarantee of $6000 to guarantee the installation and maintenance of the required landscaping onsite for a period of three years after the issue of the building certificate. Half the bond would be refunded on issue of the certificate of compliance on completion of the relevant stage, provided the landscaping was installed. The other half would be refunded at the expiry of three years provided the landscaping was satisfactorily established and maintained. 28 The applicant sought deletion of those conditions on the basis of a test case Datum v Botany [2003] NSWLEC 62. The applicant submitted that par 51 of the judgment had the effect that bonds for landscaping should not be imposed because there was no power to do so under s 80A(6) of the Environmental Planning and Assessment Act 1979. The applicant said there was ample power to require compliance with the landscape conditions under a s 124 notice so a bond was not needed in any case.

29 The respondent put, in written submissions, words to the effect that s 80A(6) is only about bonds related to works on public lands required as a consequence of a developer obtaining consent for a development on private lands. Therefore s 80A(6) has no work to do in regard to performance bonds in regard to landscaping on the subject site. The respondent put that s 79C(1) and s 80A(1) provide ample powers for the requirement of the bond for installation and maintenance of landscaping on private land the subject of a development consent.

30 I asked the applicant if the matter was pressed as a question of law and the applicant said it was not.

31 My finding is to accept the respondent's submissions. Further, it is my conclusion that the Newbury test shows that proposed conditions 51 and 53 serve a planning purpose, namely, the softening of the building form of the proposal, the screening of private open space and buildings to enhance privacy and the beautification of the completed development. 32 The conditions are relevantly connected to the proposal, landscaping being a part of the proposal and requiring a bond is a reasonable requirement when the amount of $6000 is not excessive and its repayment is provided for subject to reasonable conditions being met to ensure the long term establishment of the landscaping.

33 With landscaping in new developments, it can easily die if not maintained, or become infested with weeds, or fail to propagate in the first few years, and as a result fail to achieve the final intention of the proposed development. A bond is a suitable way for a council to seek the installation and continued maintenance needed in such circumstances. The conditions should be imposed.

1. Appeal Nos. 11544 of 2004, 11545 of 2004 and 11546 of 2004 are upheld. 2. The Court notes that appeals 11547 of 2004 and 11548 of 2004 are to be discontinued and relevant notices filed as ordered by His Honour Justice Bignold on 14 March 2005. 3. Development consent is granted for 3 houses and subdivision into 2 allotments at No. 208 Comenarra Parkway, Wahroonga, in 3 stages as shown in drawings in Exhibit B of these appeals, being Drawing Nos. 1717/01 issue C, /02 issue B, /03 issue B, /04 issue B, /06 issue B, /07 issue B, /08 issue B by Rob Crump Design; and annotated Drawing No. 61.05/026 sheet 1 of 1 by Ian Jackson landscape architect; all to be as amended by and in accordance with the conditions in Annexure A hereto. 4. The exhibits are returned to the parties except Exhibits A, B, 1, 3, 6, and 8.

              K G Hoffman
              Commissioner of the Court
              rjs/ljr

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