Byron v Ku-ring-gai Council

State Environmental Planning Policy No. 53, Metropolitan Residential Development LEGISLATION CITED: Ku-ring-gai Planning Scheme Ordinance 1971 Environmental Planning and Assessment Act 1979

CASES CITED: Pro-Vision Developments Pty Ltd v Ku-ring-gai [2003] NSWLEC 226

APPLICANT Mr S Kondilios, solicitor Instructed by: Ms S Halls, solicitor SOLICITORS Maddocks LEGAL REPRESENTATIVES: RESPONDENT Mr R Graham, solicitor SOLICITORS Abbot Tout

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10473 of 2005 David Arthur & Dora Maria Byron v Ku-ring-gai Council

JUDGMENT 1 This is a Class 1 appeal No. 10473 of 2005 between DA & DM Byron v Ku-ring-gai Council in regards to the refusal of a proposal to demolish an existing house and erect a detached dual occupancy at Lot 3 DP 512105 being No. 38B Holmes Street, Turramurra. 2 The site is a battle axe lot with the access handle about 95 m long running between 4 houses, 2 on each side of the drive. No. 38A shares the driveway with the subject site and it is a house behind No. 38 that has full frontage to Holmes Street. No. 38A and 38B each have a 3.6 m wide frontage for their access and due to the number of trees along the 2 access corridors, the 2 lots share the one driveway which at present is formed by roadbase only, and appears somewhat like a bush track winding through the trees. 3 The main part of No. 38B has an area of about 1300 sq m with a width of 28.7 sq m and a depth of 45.4 m. Adjoining it on the south is No. 44 Holmes Street that is another battle axe lot, the existing house on it is built close to the common boundary and slightly uphill of the proposed House A of the dual occupancy. House B on the north side of the lot is more or less beside House A and they both only have space enough for a shared car courtyard between them and the eastern boundary adjoining No. 38A. 4 On the north side of the proposal just uphill of House B is the house on No. 36 Holmes Street another battleaxe lot. 5 A little downhill of House B is another house on a battleaxe lot being No. 32A Holmes Street. 6 No. 40 Holmes Street is on the south side of the driveway being a standard sized frontage to the street similar to No. 38 on the north side of the drive. 7 The land rises slightly from Holmes Street cresting at No. 38A and then sloping down through No. 38B and beyond down hill. There is about a 6 m fall through the main part of the lot where Houses A and B are located with a flattish area just below the proposed houses that forms a suitable backyard area for each. Retaining walls and backfill is proposed to level the yards. The yard for House B is adjacent the house on No. 32A and it has its master bedroom and en-suite adjacent the common boundary. 8 The proposal is to straighten and seal the driveway as a result removing a number of the existing large trees. There is an existing drainage easement through the next allotment down hill of the subject site. That property is No. 52 Findlay Street. 9 The issues in the appeal are: 1. The proposal is inconsistent with the requirements of State Environmental Planning Policy No. 53, Metropolitan Residential Development, Part 5, Design Requirements, Clauses 32 (b) visual and acoustic privacy, (c) solar access and design for climate, (d) stormwater and (f) accessibility. (b) Visual and acoustic privacy The proposed detention basins and retaining walls at the rear of the property will visually impact on the adjoining property at No. 52 Finlay Road. (c) Solar access and design for climate The proposed realignment of the driveway will require the removal of trees within the access handle. House B will impact on Tree 43, Eucalyptus pilularis (Blackbutt) located on the adjoining property, No. 36 Holmes Street. The arborists report has identified the tree as a priority for retention. The proposed dwelling has been located at a distance of 4.5 m from the tree's trunk, which is the nominated critical root zone by the arborist however excavation of up to 1.5 m is required to construct the proposed dwelling. To achieve the desired levels excavation is required beyond the footprint of the dwelling resulting in root loss within the critical root zone. The subject tree is 25 m in height with a 15 m canopy spread. Damage to the roots within the critical root system will impact on the health of the tree and affect its stability. A minimum setback of 8 m is required to preserve the tree. The setback between the dwellings varies from 3.5 to 5 m with excavation up to 2 m in depth required. The area between the dwellings will be un-suitable for plant growth due to the large amount of excavation required for both dwellings. (Rocky outcrops are visible on the site indicting a shallow soil profile.) There are concerns regarding the heights of various species proposed along the southern boundary of the development site. The concerns relate to solar access and canopy overhang. (d) Stormwater The proposed inter-allotment drainage system involves a pipe of unknown diameter laid through No. 52 Finlay Road for 100 m beneath significant tree canopies and into a watercourse (despite s 5.3 of the Statement of Environmental Effects "The site will not discharge into any waterway"). Further details of this proposal will be required i.e. a survey carried out of the proposed route indicating all trees affected and the treatment of stormwater into the watercourse to prevent scouring and erosion. How is this system to be constructed without impact on existing trees. There is no scope for an overland flow path to be constructed along the easement (due to the trees). Sandstone is outcropping along the line of the easement. It is expected that the whole length will have to be thrust bored and that the pipe will have to be sized to convey the 100 year ARI flow from the site. It is difficult to determine the effect of the proposed detention basins on the rear boundary, requiring walls up to 1 m high, on the dwelling at No. 52 Finlay Road. This dwelling is quite close to the boundary and at the lower level. The design of the overflow structure would have to be carefully addressed in the design. The prevention of runoff from the newly sealed driveway from entering No. 44 does not appear to be addressed on the stormwater plan, as only 40 sq m of area is shown contributing runoff to the grated drain at each entrance. The on site detention design contains an error which means that the permissible site discharge is overestimated. This is due to the typographical error in DCP 47 (now rectified) and could be corrected later. (f) Accessibility The length of the right of way is about 95 m. Sight distance is not available from one end to the other because of a crest approximately in the middle. Two formal passing bays are required to achieve compliance with the recommendations of AS28.90.1:2004 (Section 3.2.2 - passing opportunities at least every 30 m.) Sight distance for vehicles exiting the concourse in front of the two new dwellings is restricted by vegetation and the rock shelf, both of which are in the neighbouring property, No. 38A Holmes Street. An arborist should be requested to address specifically the impacts of bringing the driveway up to the standard required and of constructing the inter-allotment drainage line within No. 52 Finlay Road. The arborist's recommendations could then be incorporated into conditions, if appropriate. If the provision of two turning bays and an upgraded surface is likely to compromise the trees unacceptably, a traffic engineer's report giving recommendations for bringing the driveway to a suitable standard is to be provided. Sight distance at each end for cars must be addressed, as well as access for service vehicles along this very long driveway. 2. No owners consent has been provided in respect of the proposal driveway pavement works within the common rights of carriage from the adjoining owner/s. 3. No details of the common rights of carriageway have been provided from the Instrument filed as J838776. 10 The respondents evidence was heard from: + Mr A Todicescu, objector and resident of No. 36 Holmes Street. + Mr S. Ramanathan, objector and resident of No. 38A Holmes Street. + Mr and Mrs Rowley, objectors and residents of No. 32A Holmes Street. + Mr and Mrs Bass, objectors and residents of No. 44 Holmes Street. + Mr and Mrs Kingdom, objector and residents of No. 40 Holmes Street.

11 The applicants evidence was heard from: + Mr I Glendinning, consultant town planner + Ms P. Howden, consultant arborist + Mr G. Paroissen, consultant arborist 12 There were drainage plans and environmental plans by Mr S. Fryer engineer in Exhibits D and E but he was not required for examination. 13 During the hearing the parties agreed to alter the driveway proposal to retain most of the trees along the shared access. 14 The owner of half of the access Mr Ramanathan maintained his objection to the proposal, and did not give his consent to the use of his part of the access for the proposal. 15 Involved in the access the need for a passing bay for 2 reasons. The first being the length of the driveway and the second being that the rise to the crest adjacent No. 38A. These prevented drivers seeing each other before entering the single lane drive. It created the need for a passing bay and the best location is at the crest on No. 38A's land but within the reciprocal right of way. Another passing point can be arranged at the drive entry by having a wide footpath crossing. 16 At the end of the driveway where it enters the shared car courtyard widening may be needed to accommodate a car waiting for another to come through. 17 With changes to preserve existing trees the parties agreed this amended layout for the driveway would be satisfactory. A passing bay adjacent No. 40 was deleted. 18 The applicant submitted that the driveway and the passing bay were uses permitted by the terms of the right of way. Mr Ramanathan was concerned the passing bay might become a parking bay but the council's engineers gave no evidence to support that. 19 Mr Ramanathan and the other neighbours wanted the majority of trees kept and that had been agreed and suitable supplementary bushland vegetation would be added. 20 In particular Mr Ramanathan liked the existing informal look of the driveway. The applicant had changed the pavement to follow the existing route winding through the trees, and now proposed 50 mm of compacted sand on top of the existing road base and pavers of porous materials to further protect the existing trees and not disturb their root systems. Mr Ramanathan said he did not like pavers; the applicant said the final colours or blend of colours in the pavers or other surface finishes would be discussed with Mr Ramanathan and be to his choice. 21 The applicant had also conceded to install a chain mesh fence along the driveway southern side instead of a paling fence to keep the open bushland appearance the neighbours wanted. They were not greatly concerned about privacy. 22 The respondent submitted that although the parties had reached a point of satisfaction on the merits of the driveway, there remains a primary obstacle to consent namely that neither the previous owner of No. 38A nor the recent purchaser Mr Ramanathan had given consent to the application for works on No. 38A. 23 Although the ROW might permit the uses and works proposed there is still a need for a development application and development consent the respondent said. Without an owners consent for the proposals on No. 38A, there is no valid development application and therefore no consent is possible. Nor was there any consent from No. 52 Finlay Street for the drainage works in that easement. 24 The applicant said, the shared access on No. 38A and the terms of the easement on No. 52 means that if any owners consents are needed they are implicit to the terms of the access and easement. 25 I am inclined to agree with the applicants submission particularly as such an estoppel would pose a question of law that should have been raised at the time of setting the issues and referred to the Chief Judge for determination prior to any Class 1 Hearing such as this. The respondent did not do so and still does not press the matter as a question of law. Although Mr Glendinning's Statement of Environmental Effects said, owners consent had been obtained, that could include the original grantors of the right of way and the easement. The respondent said Mr Ramanathan's consent is required, but based on the applicant's submissions I do not agree. The proposal is only to do such works as are permitted under the terms of those titles and pars 30 and 31 of Pro-Vision Developments Pty Ltd v Ku-ring-gai [2003] NSWLEC 226 Lloyd J support this. 26 The application was lodged under State Environmental Planning Policy No. 53 Metropolitan Residential Development (SEPP) and therefore the prohibition of dual occupancy in the Residential Zone 2(c) of the Ku-ring-gai Planning Scheme Ordinance 1971 is overcome and the proposal becomes permissible under SEPP 53 and the Environmental Planning and Assessment Act 1979. 27 Mr Paroissen said that due to the redesign of the driveway most trees could be kept. From numbered trees in Exhibit G these included: T1 A blackbutt on the footpath just outside the street boundary T2 A bloodwood just inside the boundary T3 A camphor to be removed it is considered a weed in the bushland T4 Is in poor condition and should go T5 A redgum to stay T6 A bluegum to stay T7-T13 All to stay T14-T16 deletion of passing bay adjacent No. 40 Holmes Street enables retention although T14 is in decline T17 Can be kept with drive route staying as is T18-T24 Can be kept. T25 Is in irreversible decline and should go T26-T29 To be kept even with passing bay at crest of hill T30 Is in irreversible decline and should go T31-T32 To be kept T33 not on subject land and can remain due to pavement redesign to minimise impact T34-T35 To be kept. Best to leave existing concrete adjacent T34 rather than rebuild that part of the driveway.

T36-T37 Not on subject property and can remain although growing on rock shelf and potentially unstable T38-T39 To be kept T40 Can be kept by hand excavation for car court 28 As a result the driveway can keep its current appearance and with supplementary endemic shrub plantings it will give some privacy to neighbours either side of the driveway whilst enhancing the bushland. The passing bay adjacent No. 38A is to have shrubs planted between the trees and will screen it from the house and garden. The council agreed to leave the existing concrete of the driveway near T34 and it would still provide acceptable sight lines for drivers. 29 Other trees potentially affected by the development are: T43 To be unaffected due to redesign of House B after root mapping. T45 To be unaffected due to redesign of House B backyard filling to keep 3 m from the trunk T46 Fill is only just into root zone, not enough to have an impact 30 Stormwater pipes have to be moved away from T45 and T46 to avoid root zones requiring amendment of Exhibit D. Also pier footings to be used adjacent to T43 and T46. And the stormwater drain shown in Exhibit D under the driveway is to be deleted to avoid trenching through the roots of the various trees from T25 to T34. Drainage to be done by surface drainage along a kerb gutter to bring water down to the car court drains. Provision of water and power and telephone supply and any potential damage to trees and their protection needs to be finalised. 31 The respondent accepted this evidence but pressed the objectors other concerns. 32 The applicant accepted the draft conditions in Exhibit 13 except for condition 73 and 74 that required bonds for on-site landscaping. The applicant submitted that under the Court's adopted Planning Principles there was no legal basis for the imposition of such bonds. The applicant would accept performance conditions in lieu and changes to the conditions as marked in Exhibit J intended to satisfy the objectors other concerns. 33 In regard to detention systems; to minimise structures adjacent No. 52 Finlay Street the detention tanks have been located just downhill of House A and House B so that only pipes are needed down the drainage easement on No. 52. The arborists agreed that thrust boring for the pipes should be possible to avoid damage to most trees along the easement and that final design for that could be a deferred commencement condition. Since the house on No. 52 is close up to the rear boundary of the subject property it was agreed by the parties that a chainmesh fence 1.5 m high similar to the changed fencing on the other boundaries was appropriate to minimise the height and bulk of a fence immediately uphill of the house. Conditions were to be imposed so retaining walls did not affect trees T45, 48 and 49. 34 Mr Todicescu is a music teacher who gives some classes at home. He is very concerned about construction noise affecting his work. There may be some times during construction that his teaching may be disturbed. This would be the case with any new house being built nearby. I cannot put such weight on that impact to say the proposal must be refused. Mr Todicescu does have the option to do all his classes at the conservatorium or his school during periods of construction that would disturb him, such as during excavation. 35 Mr and Mrs Kingdom of No. 40 Holmes Street had major concerns about the original driveway design and loss of trees that would affect the amenity of their backyard recreation space and the possibility make existing trees unstable by removing their protection from winds and cutting their roots. Mr Paroissen's evidence had largely satisfied their concerns on these matters. 36 The additional traffic of about 6 vehicle trips per day from the additional house on the site was not a concern of the council engineers Mr Hawken or town planners. Safety and noise and fume amenity impacts would be very low. Mr Hawken supported the amended driveway layout for driver safety. The passing bay adjacent the Kingdom's outdoor dining area is now deleted and shrub plants are to take place and increase privacy. The planting would be acceptable as the Kingdoms were not particularly concerned about privacy. Currently neighbours could see into each others yards due to the lack of fences and they all said they preferred the friendly community that the lack of fences created. A chain mesh fence now proposed is preferred to a paling fence. 37 Services were another concern since water, power and telephone services needed to come down the access handle. Sewer was connected on the downhill end of the site. Existing power and telephone and water conduits were underground and their capacity for two dwellings was not known at the hearing and needed to be included in conditions to ensure no impact on the trees now intended to be saved. The applicant said if such services needed duplication or enlargement thrust boring could be done to avoid impacts. 38 Protection fences for driveway trees during construction were in the draft conditions as being erected on the boundary lines of the access handle. There was no danger to the trees from neighbours, and they are the only persons such fences would keep out. Clearly the tree protection fences had to be along both sides of the existing driveway track to prevent impact from vehicles entering and leaving whilst providing construction access to the site and vehicle access to No. 38A. 39 Mr and Mrs Bass at No. 44 are a battleaxe lot adjoining proposed House A. They are concerned about heavy vehicles using the access drive and affecting their boundary retaining wall. Excavation for the proposed houses might also cause additional damage and siltation. Flooding to their subfloor areas happened when the existing No. 38B was built. Siltation had redirected overland flows 40 House A is proposed on The Bass's downhill side adjacent the rear of their house. This avoided shadows from House A affecting their northern windows as did the use of a chain mesh fence instead of a paling fence. 41 However it meant House A shaded the northern side of their backyard just below the house, and they said its height and bulk would dominate their aspect from their back verandah. The verandah served their major living rooms, and from it, was a pleasant outlook to their vegetation and the bushland beyond. 42 The applicants' evidence is that House A is stepped down the hill. Its rear section is single storey and close to ground level to enable easy access to the backyard. 43 The front part of the house adjoining the car court is also single storey and the 2-storey section of the house is excavated almost a full storey in the northern side thus minimising the height and the bulk. The rear section of House A has a 6 m side setback to the Bass's boundary and whilst the ground floor of the house has 1.5 to 2.5 m variable setback the upper storey has a 3 and 4 m variable setback as required by SEPP 53. 44 The Floor Space Ratio allowed is up to 0.5:1 and the proposal is 0.36:1. The permissible site coverage is 60% and the proposal covers only 40% so the development cannot be said to be trying to maximise the building. 45 In terms of shadows the applicants evidence is that in mid winter at 9am the shadow of House A goes about half way across the Bass's yard covering about a quarter of the total area. By midday, the shadow of House A is only slightly more than the shadow caused by the boundary fence. Not long after midday there is no shadow on No. 44. 46 At the equinoxes in March and September the 9 am shadow is for a small distance only about twice that of the boundary fence shadow and about the same as the boundary fence at midday. The shadowing is acceptable in impact. 47 The major outlook from the Bass's verandah is directly downhill to their own vegetation and trees beyond. House A would be seen to the side through the canopies of their own trees, but could not be said to be such that refusal is in any way warranted. 48 The plans showed an air-conditioning unit on House A adjacent the North East corner of the Bass's house. That corner contains a bedroom and I agree the air-conditioning unit must be relocated further away, at least to be outside the Meals Room of House A. 49 The Bass's concerns about trees I believe to be satisfied by Mr Paroissen's evidence. Their concerns about damage due to construction vibration etc can be dealt with by having conditions for dilapidation reports before work commences and repairs where needed and safe work practice requirements for dust control and asbestos removal. 50 Perhaps their primary objection is that this form of development is "inner city medium density" which is in their opinion not in character with the leafy spacious properties of Ku-ring-gai. 51 The applicant's position is that on the allotment of 1300 sq m, one house per 650 sq m is not medium density and each house has a backyard in excess of 250 sq m. 52 SEPP 53 allows allotments down to as small as 230 sq m for integrated housing or less than the size of the backyard of each house in the proposal. That would be inner city medium density. The proposal is low density. In detached dual occupancies such as the proposal, SEPP 53 allows an allotment down to 600 sq m area to have 2 houses on it. That is double the density of the proposal. 53 Whilst it is true in the Residential 2(c) zone of the Ku-ring-gai Planning Scheme Ordinance the proposal is prohibited, the applicable legislation of SEPP 53 overcomes that. The applicant put the reason for SEPP 53 applying to Ku-ring-gai is due to the State Government's decision that Ku-ring-gai Council has failed to provide an adequate strategy for housing growth in its part of Sydney. 54 The applicant's evidence is that the proposal complies with the requirements of SEPP 53 and although the Ku-ring-gai Dual Occupancy Code is over ridden by SEPP 53, the proposal complies with all of its requirements except side boundary setbacks. The Code requires 3 m setback and that is not achieved at the ground floor level, but it is achieved at the second storey level. The setback of the second storey on both houses gives articulation and reduces visual bulk as seen from the neighbours. The stepping of the house down the hill and partial excavation reduces height and bulk. When the proposed vegetation grows the buildings appearance will be further softened. 55 Both House A and House B have been assessed under the BASIX requirements and achieve a satisfactory sustainability index and solar orientation. 56 At No. 32A the Rowley's house is down hill of House B approximately adjacent its proposed backyard. 57 The Rowley's main bedroom and other bedrooms have large glass windows facing to the north in the direction of House B. Some windows of House B would look directly down to them. 58 Currently the Rowley's enjoy a leafy outlook to boundary vegetation. Most of this is on, or close to the boundary, on top of a natural embankment that rises from No. 38B about 1 m up to No. 32A. The erection of a paling fence could necessitate removal of the vegetation on the subject site. Also tree numbers T42, T43, T50 were just on No. 32A and could be affected by construction. Trees T48 and T49 were just on No. 38B. Exhibit G the tree survey had not identified other trees near the boundary. 59 The Rowley's said for the past 35 years neighbours had agreed no fences except for swimming pools, in order to keep the open bushland appearance and to enable local fauna to maintain movement corridors. 60 The Rowley's were also concerned about demolition dust control and asbestos removal. They asked for a dilapidation report prior to construction and that excavation methods be made to minimise noise and vibration. 61 The construction process concerns were answered as mentioned previously by the council's draft conditions. 62 The concern about fencing and privacy of the bedroom windows were answered by the applicant volunteering to fix the lower sash of the window to bedroom 3 of House B and have obscured glass to 1.6 m above the floor. To prevent overlooking from the Family room windows and deck of House B, a privacy screen was also volunteered to be placed on the boundary as marked in green in Drawing 1806/05 Amendment B in Exhibit A. It is to be 4 m long 2.9 m high measured from the ground at each point along its length. The boundary fences to be chain mesh 1.5 m high except for the length of the south west boundary between House A and the street that is to be 1.2 m high. 63 Mr Ramanathan was a little disconcerted that during the process of purchasing No. 38A, he had not been advised of the proposal. He said he would not have bought had he known. The attractions of the existing property are: + Open outlook + The garden + Tree lined driveway + Rustic quality + Tranquillity + Nature surroundings 64 He has dust allergies. Also he wanted to escape the city. The proposal was like the city following him to Ku-ring-gai. 65 The impacts of the proposal he envisages are: + Additional hard paving + Loss of Trees + New fence especially a timber fence + Destroying open character of the area + Changes to the driveway including the passing bay adjacent his vehicle access to his house + Excavation, noise, dust vibration + Possible loss of T34 and T40 that are special to the attraction of his property + The density of the development + He gave no consent for works on his land 66 Having heard all the other evidence, and Mr Ramanathan having taken part in the hearing, I have come to the conclusion that along with the reasonable objections of the other neighbours, the applicant has accepted conditions of approval that mitigate the feared impacts of the neighbours to the extent that refusal on merits is not justified.

67 The need for Mr Ramanathan's consent to the development application I have already dealt with. Therefore the Orders of the Court are:

2. Deferred development consent is granted to a detached dual occupancy development at No. 38B Holmes Street, Turramurra as shown on plans in Exhibit A being Drawing Nos. 1806/1 Amendment B, 1806/02 Amendment B, 1806/03 Amendment B, 1806/04 Amendment B, 1806/05 Amendment B as annotated in green, all by Rob Crump Design, and landscape plan in Exhibit C being drawing LPO1 Rev B by Patio Design and Stormwater Drainage Plans Nos. SW01, SW02, SW03 all amendment A by Stephan Fryer Engineers and Sediment and Erosion Control Plans 1295SEO1 and SEO2 by the same engineers, and the arborist reports and management plans by Melanie Howden in Exhibit H and Mr G. Paroiessen's report and tree location map in Exhibit G all as further amended by the conditions in Annexure A hereto.

3. The exhibits are returned to the parties except Exhibits A, C, D, E, G, H, J and Exhibits 1, 2, 4 and 13.

      K G Hoffman
      Commissioner of the Court
      Ljr/rjs

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