Carem Pty Ltd trading as Mackenzie Architects Pty Ltd v Ku-ring-gai Council

CASES CITED: BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399 Matic v Mid Western Regional Council [2008] NSWLEC 113

DATES OF HEARING: 25 and 26 August and 9 September 2009

APPLICANT Mr I Hemmings, barrister Solicitors LEGAL REPRESENTATIVES: Deacons RESPONDENT Mr A Pickles, barrister Solicitors Yates Beaggi Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10131 of 2009 Carem Pty Ltd t/as Mackenzie Architects Pty Ltd v Ku-ring-gai Council

JUDGMENT 1 This is an appeal against the refusal by Ku-ring-gai Council (council) of a development application to demolish two existing dwelling houses, a tennis court and ancillary structures and construct two residential flat buildings (Buildings A and B) with a common basement car park at 5-7 Telegraph Road, Pymble (the site).

i. the proposal achieves an appropriate transition between adjoining development; ii. the separation between the buildings is adequate to achieve acceptable building bulk in the streetscape and solar access; iii. the communal open space is accessible and provides acceptable amenity; and iv. the solar access to units is reasonable. The site and its locality 3 The site is located on the eastern side of Telegraph Road, near its intersection with the Pacific Highway. It is irregular in shape with an area of about 4900 sqm. The site falls about 15 m from the Telegraph Road frontage to the rear boundary. Two dwelling houses and a tennis court are currently on the site and there are a number of large trees. Surrounding development is predominately detached residential houses. The adjoining site, on the corner of the Pacific Highway, is a seniors living development.

4 The adjoining site to the north east (9 Telegraph Road) is a single dwelling house but there in an approval for a seniors living development. The rear of the site adjoins a single dwelling (14A Park Avenue), which is at a lower level to the site and is built close to the common boundary. A water reservoir is opposite the site across, Telegraph Road. Planning Controls 5 The site is zoned Residential 2(d3) under Ku-ring-gai Planning Scheme Ordinance (KPSO). The development is permissible with consent. The adjoining land to the south west is zoned Residential 2(e) and adjoining land to north east and south east is zoned Residential 2(c2).

6 Clause 25L of KPSO requires: 1. The objective of this clause is to provide a transition in the scale of buildings between certain zones. 2. The third and fourth storey of any building on land within Zone No 2(d3) must be set back at least 9 metres from any boundary of the site of the building with land (other than a road) that is not within Zone No 2(d3). 3. Landscaping required to screen development from adjoining property must be provided on the site and must not rely on landscaping on the adjoining property. 7 Ku-ring-gai Development Control Plan 55 (DCP 55) is also relevant. It includes provisions regarding desired future character (cl 3.2), landscaping and visual character (cl 3.3), setbacks (cl 4.3), built form and articulation (cl 4.4), residential amenity (cl 4.5).

8 State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) and the Residential Flat Design Code (RFDC) also apply to the development.

9 The site is proposed to be zoned R4 High Density Residential under Draft Ku-ring-gai Local Environmental Plan (Draft LEP), which would permit residential flat buildings with a maximum height of 17.5m. The adjoining site on the Pacific Highway is also proposed to be within the R4 zone. 14A Park Avenue and 9 Telegraph Road are proposed to be zoned R3 Medium Density Residential, which permits multi dwelling housing to a height of 11.5m. The draft LEP has been exhibited, adopted by Council and forwarded to the Minister. Neither party submitted that the Draft LEP was imminent and certain but it is a relevant matter for consideration.

10 Mr Hemmings, for the council and Mr Pickles, for the applicant, made submissions on the weight to be given to the zoning of the land. Both referred to BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399 where McClellan CJ stated: 117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects (Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.

118 In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts. 11 Mr Pickles submits that the site is specifically zoned 2(d3) being an "island site" surrounded by other zones. Although a range of uses is permitted, a residential flat building provides for the highest economic use of the site. He submits that weight must be given to the zoning and that a residential flat building in some form will occur.

12 Mr Hemmings submits that the zoning is neutral factor although he recognised that development of some permissible form within the zone would occur.

13 There is little difference in these submissions. The zoning permits residential flat buildings and it is a reasonable assumption that some form of residential flat building would be developed on the site. The use of the site for a residential flat building was not an issue between the parties, the key question being whether the proposed residential flat building results in acceptable environmental impacts. Issues 14 The Court visited the site and heard evidence from two residents, including the owner of 14A Park Avenue. Her principle concern was the impact that the proposal would have on her property through overshadowing, loss of privacy, the bulk of the development and the height of proposed landscaping.

15 The main concerns of the owner of 11 Telegraph Road related to the increase in traffic and parking and the bulk and orientation of the development towards the single dwellings along Telegraph Road.

16 The Court heard evidence from Mr Chapman, planner for the applicant and Mr R Olsson, architect/urban designer for the Council. The hearing was adjourned for amended plans, which would seek to address the impact of the proposal on 14A Park Avenue.

Zone Transition 17 The key disagreement between the experts related to whether the proposal achieved an appropriate transition between adjoining zones and the development in Telegraph Road. Mr Olsson considered a transition in built form would be achieved by a 6 m setback of the lower levels required by DCP 55 and a 9 m setback of the upper-levels required by cl 25L of KPSO. He considered that the setback of all levels by 9 m provided benefits of additional separation and landscape area but did not achieve a transition in scale of the built form.

18 Mr Chapman considered that the setback and landscaping complied with the requirements in cl 25L(2) and (3) and therefore met the objective in cl 25L(1). The setback requirements in DCP 55 are a minimum and the increased setback of the lower levels to 9 m provides opportunities for increased landscaping and separation to adjoining development, which in his opinion achieved an appropriate transition. The increased setback also reduces visual bulk, privacy/overlooking impacts and solar access to Building B and the adjoining development.

19 Mr Olsson also raised concerns about the transition in scale between the proposal and 14A Park Avenue due to the difference in levels and the proximity of the primary open space and the dwelling at 14A to the boundary with the site. 14A Park Avenue has a garage, kitchen and living rooms widows approximate 1.5 m to 5.5 m from the site boundary and its principal area of open space is below the level of the site.

20 The original proposal was setback about 9 m from the boundary. The applicant has amended the proposal to setback the upper floors between 11.66 m and 16.27 from the boundary. The top floor is setback further and the lower levels remain at 9 m. The amended proposal has deleted two units and changed units B40 and B41 from three bedroom to two bedroom units.

21 Mr Olsson agreed the privacy and overshadowing impacts on 14A park Avenue would comply with the requirements of DCP 55. However, he maintained his concern that the bulk of the building would be "overbearing" and that a further setback of the building was required. He stated that the trees (Eucalyptus paniculata) along the boundary were necessary to screen the development to mitigate its impact but that these are evergreen and grow to 13-22m. Together with the understorey planting, which grows to about 4m, they would cause overshadowing and a sense of enclosure to 14A Park Avenue. He stated that the lower levels should be further setback to permit more deep soil and enable the landscaping to be scattered through the setback area rather than be a "wall" along the boundary.

22 Mr Chapman stated that the increased setback of the upper floors had significantly reduced the building bulk. The setbacks exceeded the minimum requirements in DCP 55 (6m for lower two levels) and KPSO (9 m for the third and fourth floors). In Mr Chapman's opinion the increased setback adequately addressed the impacts resulting from the level differences between the site and 14A Park Avenue. Further he stated that the landscaping was consistent with the requirements of the planning controls, which required large canopy trees and for building to be within a landscape setting. He noted that under the Draft LEP, 14A Park Avenue was proposed to be zoned for multi unit development and that the proposal would provide a greater setback than would be required.

Findings 23 The wording of cl 25L is not explicit. Mr Hemmings submits that a stepping in built form is required to achieve the objective in cl 25L(1). He referred to the decision of Jagot J in Matic v Mid Western Regional Council [2008] NSWLEC 113 where Her Honour stated:

7 The meaning of a provision in an environmental planning instrument must be determined having regard to its context and purpose (Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379 at [37] - [46] and [63]; s 33 of the Interpretation Act 1987). "Context" has a wide scope and may include the "mischief which…one may discern the statute was intended to remedy" so that, by this method, an alternative construction to the literal meaning may be preferred if it is "reasonably open and more closely conforms to the legislative intent" (CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408).

8 Legislative intent, however, is not to be discerned by reference to pre-conceived ideas or vague notions of what might or might not be desirable. Intent is to be objectively determined. It is manifested "by the use of language" in the document to be construed (Wilson v Anderson and Others (2002) 213 CLR 401 at [8]). Accordingly:

…it is through the meaning of the text, understood in the light of background, purpose and object, and surrounding circumstances, that the legislature expresses its intention, and it is from the text, read in that light, that intention is inferred (Singh v The Commonwealth and Another (2004) 222 CLR 322 at [19]).

9 These requirements have particular significance for the construction of environmental planning instruments. The planning purpose of an environmental planning instrument is to be determined by reference to the language of the instrument considered in context. There is no room for "some preconceived general notion of what constitutes planning" (Western Australian Planning Commission v Temwood Holdings Pty Limited (2004) 221 CLR 30 at [56] citing Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490 at 500). Further, and as noted in Calleja v Botany Bay City Council (2005) 142 LGERA 104 at [25] "any attempt to always find planning logic in planning instruments is generally a barren exercise". 24 Mr Hemmings submits that a purposive rather than a literal interpretation of the clause is required. This involves an examination of the text, its context and purpose. Clause 25L(1) states its purpose and in Mr Hemmings submission this is not achieved merely by satisfying subcl (2) and (3).

25 Mr Pickles submits that by satisfying subclause (2) and (3), the purpose as stated in cl 25L(1) is achieved.

26 I accept Mr Hemmings submission that a purposive approach is required to the interpretation of cl 25L but that this must be based on the meaning of the text and not on a person's perception or knowledge of what is desirable or an appropriate planning approach.

27 In Mr Olsson's opinion to achieve "a transition in the scale of buildings between certain zones" would require the upper levels to be setback above the second storey and a stepped form of building. He states that it is "a widely accepted design approach, to step building forms, from lower buildings up to higher buildings so that there is a visual relationship between the lower levels, and the upper levels are setback". I accept that this is one approach to achieving a transition in the scale of buildings and, in particular circumstances such as in relation to adjoining heritage items, it may be necessary to ensure that a building of the same height adjoins the item. Given the existing and, in the case of 9 Telegraph Road, the approved use of the adjoining properties and their potential future zoning in the Draft LEP there is no reason why a 6m setback of the lower levels would not be appropriate. However, the cl 25L does not mandate that this it is the only approach.

28 Clause 25L does not explicitly require a stepped building form or that upper floors must be setback from the lower floors. Rather the purpose of achieving a transition in the scale of buildings can also be achieved by setting back upper floors a sufficient distance from the adjoining zone and by providing space for landscaping to screen the development. These measures address the transition in scale of buildings between zones by seeking to mitigate the impacts of the upper levels so that they are further away, less visible, screened, with potentially less amenity impacts such as overshadowing and privacy.

29 I note that the report to Council on the proposal did not raise an issue with the proposal's compliance with cl 25L and that other applications in the 2(d3) zone have interpreted cl 25L in the manner suggested by Mr Pickles and permitted development with no stepping of built form.

30 The proposal will impact on 14A Park Avenue as it currently enjoys an outlook to trees and open space which will be changed to an outlook of buildings, albeit setback and screened by trees. However, this change is consistent with what is anticipated by the planning controls, which permit 5-storey residential flat buildings adjoining dwelling houses. The amended proposal is setback considerably more than the requirements in KPSO and DCP 55 to address the change in level between the sites and mitigate the bulk of the development to a level anticipated by these controls. The privacy and overshadowing impacts are also acceptable.

31 A greater setback would further mitigate the impacts of the proposal and would enable the landscaping to be setback from the boundary. However, this would result in a further reduction in the number or size of units and is beyond what is required by the controls and, in my view, it is not reasonable to require a greater setback. I accept Mr Olsson's opinion that the landscaping along the boundary will result in overshadowing and enclosure to 14A Park Avenue. A condition should be included in any consent which reviews the landscaping along this boundary to reduce the overall height, species or number of canopy trees while still screening the development and achieving the objectives of the controls for indigenous canopy trees and that buildings be within landscape settings.

Separation between Buildings A and B 32 Mr Olsson states that: In the RFDC, building separation is proportional to building height to facilitate better urban form and improved residential amenity. The RFDC requires a minimum separation of 12m between 12 m high (4 storey) buildings. 33 The proposed separation between Buildings A and B varies between 7.8 m and 13.5 m at levels 1-4. 34 Mr Olsson considered that the proposed separation would not achieve the objectives of the control in relation to building massing and landscaping between buildings. In his opinion the setback was insufficient to enable the buildings to read as two separate buildings. Rather from the street the proposal would appear as a single mass with landscaped side setbacks. Further, the space was insufficient to provide large canopy trees between Buildings A and B. Greater separation would improve solar access to the area and provide better amenity to the residents. He agreed that visual and acoustic privacy impacts were addressed by the design and separation of units and privacy devices however, he considered the space between the buildings would be too narrow and be "canyon like".

35 Mr Chapman held the contrary opinion that the proposal met the objectives for building separation in the RFDC and also enables greater separation with the adjoining sites. He considered that the separation provided "a suitable break in building form/massing to Telegraph Road" and acceptable amenity although he acknowledged that solar access to units would be improved by greater separation.

Findings 36 I acknowledge Mr Olsson's evidence that a greater separation would be a better design and would further break up the massing of the building and improve amenity, particularly to the one bedroom units (A1, A6, A14 and A16). However, the space between the buildings is designed to provide access to the units and is not an area of communal open space nor are the living areas and private open space of the units orientated solely towards this space.

37 From the street the development may appear as a single mass and its consistency with the streetscape would be improved by greater separation between Building A and B. However, this is not inconsistent with the planning controls. C-3 of cl 4.4 of LEP 55 limits the length of a single building on any elevation facing the street to 36 m and C1 and C2 require articulation and limit the area of wall planes. The proposal, as two separate buildings, easily meets these controls and would also do so if it were designed as a single building. The proposal is a residential flat building and its form and massing are different to that of the residential development in this street. None the less the proposal is consistent with what is envisaged by the planning controls in KPSO and DCP 55.

38 The units are designed to limit visual and acoustic privacy impacts. An increased separation would not necessarily increase the amount of deep soil planting due to the basement car parking and there is adequate landscaping within the space, if considered as an access way rather than an area of communal open space. Solar access to units would be improved by greater separation but overall the units comply with the controls in RFDC for solar access.

39 In relation to internal amenity, the one bedroom units are designed to orientate towards the front of the development and while their amenity would be improved by a greater separation, it is not considered to be unacceptable and would not of itself warrant refusal of the application.

40 I accept Mr Olson's opinion that the space would be "canyon like" due to the separation distance in proportion to the four storey height, however, as an access way it is not unacceptable.

41 In reaching this conclusion, I have considered that this area is not intended to be used as communal open space. This conclusion is contingent on adequate communal open space being provided elsewhere in the development.

Communal open space 42 Mr Olsson and Mr Chapman held different opinions about the adequacy of the proposed communal open space.

43 Mr Olsson considered the principle area of open space to be that in the south west corner of the site. However, he considered that while this met the numerical requirements for area and deep soil planting it did not provide accessible open space for the development. In his opinion the amenity of this area was poor as it was at a lower level to the units and was not easily accessible, was steeply sloping and was significantly overshadowed. He stated that the rear area received only a "shaft of sunlight" at 11am and some sunlight at 3pm on 21 June. The areas at 10am and 12 were insignificant.

44 Mr Olsson did not consider that the area of communal open space at the front of the development was the principal area of common open space, particularly as the north west section was not accessible and, if it were, would result in privacy impacts between the ground and first floor units. Similarly, part of the north east section was unsuitable as open space because it would permit direct overlooking of the ground and first floor units. The remaining part of the north east section would provide good solar access and was easily accessible, however, in Mr Olson's opinion was not sufficient to meet the needs of the development.

45 Mr Chapman considered that both the front and rear areas of open space are the principal areas of open space and that if considered together would provide accessible open space with adequate solar access and that the grade of the rear area still allowed people to sit. He acknowledged the issues in relation to the front sections of open space but nonetheless considered that in combination the front and rear sections met the requirements of DCP 55.

Findings 46 Clause 4.5.5 of DCP 55 provides design objectives and controls for outdoor living, including private and common open space. The design objectives for common open space are:

O-4 Deep soil planting in common areas of the site. O-5 Easy access to common open space for all residents and visitors 47 The relevant design controls for common open space are:

C-9 At least 30% of the site area is to be common open space principally for tall tree planting.

C-11 Locate common open space at the front and rear of lots and to optimise solar access to the open space and units

48 Clause 4.5.1 of DCP 55 provides design controls for solar access. C-2 provides:

C-2 At least 50% of the principal area of common open space of the development shall receive direct sunlight for at least 3 hours between 9.00am and 3.00pm on June 21. 49 Mr Hemmings submits that the principal common open space is the rear as this is the larger area and is not overlooked by units or from the street. However, the area does not comply with the 50% requirement for solar access and is not usable open space. Further he submits that only a small area of the front open space is useable due to access constraints and potential for interaction with the adjoining units.

50 Mr Pickles submits that both the front and the rear areas should be considered as principal common open space and that these areas comprise not just the lawn areas but also the areas of planting and that each area does not need to be accessible. On this basis, he submits that the proposal meets the objectives for common open space and the control for solar access of 50%.

51 I do not accept Mr Pickles submission. Both the rear and the front are areas of open space, which jointly could be considered to comprise the principal area of common open space. However, they need to be assessed against the objectives and the controls.

52 Both areas provide deep soil planting and meet O-4 and C-9 of cl 4.5.5. Only the front north east section provides easy access to all residents and visitors and meets O-5 of cl 4.5.5. The front north west section, as currently designed, is not accessible. The rear area is at a lower level accessible by stairs (with a stair climber). The area slopes and would not be easily accessed or utilised from without and within. I accept that not all areas of communal open space need to be accessible, however, there needs to be sufficient area that can be utilised by the occupants of the building. The proposal does not provide adequate area that is easily accessible and therefore does not meet objective O-5 of cl 4.5.5 of DCP 55.

53 A similar principal should be applied to solar access. I accept that the combined area can be considered as being principal open space, but the solar access to each of the areas needs to be considered. There was no disagreement that the front area received excellent solar access, however, the accessible and usable area of open space is small, estimated by Mr Olsson as 57sq m. The rear area of open space is shaded by the development and receives very little solar access as indicated in the overshadowing diagrams. The proposal therefore does not meet C-2 in cl 4.5.1. The proposal also does not meet C-11 in cl 4.5.5 in that, while the common open space is located in the front and the rear, it does not optimise solar access to the open space or the units. The areas of private open space of the front ground level units are set down below the level of the front common open space and will be largely overshadowed and therefore do not optimise their northerly aspect. 54 The location of the largest area of common open space in the south west corner clearly does not optimise solar access particularly as there appears to be an alternate location for the open space in the south east corner, which is flat and would provide better solar access. Mr Chapman stated that this alternative was not feasible due to constraints of level change, car park access and potential breach of the height and site coverage controls. Mr Olsson considered the option to be feasible and preferable. As the option was not investigated it is not possible to assess if it could optimise solar access to the common open space and is reasonably feasible.

55 The access and amenity of the rear open space would not be important if it were to be an area devoted largely to deep soil planting and to provide a setting for the development. However, this would only be an acceptable option if other areas of communal open space were provided which were accessible, usable and did not conflict with the areas of private open space. This is not the case.

56 The common open space and the separation between Buildings A and B are negative features of the development which in combination are not what is anticipate by the planning controls and on this basis the application must fail. Solar access 57 C-4 and C-5 of 4.5.1 of DCP 55 state:

C-4 No single aspect units shall have a single orientation. C-5 Not more than 15% of the total units proposed shall be single- aspect with a western orientation. 58 The experts disagreed on the number of single aspect units with only a south orientation. Mr Olsson stated that there were four units and Mr Chapman stated that there were two units. The number of units with a west orientation was also in dispute and it was not established whether the number exceeded the 15% maximum in C-5, and council had not raised this as an issue.

59 Despite the non compliance the proposal meets the objectives of the control in O-1 for natural lighting of all living spaces and it complies with the requirements of RFDC for solar access to 70% of units. Better solar access may be achieved by the increase separation between Block A and B and by reducing the number of single aspect apartments, however, of itself this does not warrant refusal of the application. Orders 60 The Orders of the Court are: 1. The appeal is dismissed. 2. The development application to demolish two existing dwelling houses, a tennis court and ancillary structures and construct two residential flat buildings (Buildings A and B) with a common basement car park at 5-7 Telegraph Road, Pymble, is refused. 3. The exhibits, except exhibits 1, are returned.

      Annelise Tuor
      Commissioner of the Court

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