Cawthorne v Ku-ring-gai Council

Ku-ring-gai Planning Scheme Ordinance LEGISLATION CITED: State Environment Planning Policy No. 53 - Metropolitan Residential Development Ku-ring-gai Dual Occupancy Code

CASES CITED: Project Ventures v Pittwater Council [2004] NSWLEC

DATES OF HEARING: 25/08/2005 EX TEMPORE JUDGMENT DATE : 08/25/2005

APPLICANT Mr S Kondilios, solicitor SOLICITORS Maddocks

RESPONDENT Mr P Rigg, solicitor SOLICITORS Deacons

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

1 This is a class 1 appeal between Lyn Cawthorne and Ku-ring-gai Council in regard to the refusal of consent for a detached dual occupancy at No. 122 Junction Road, Wahroonga. The appeal No. is 10505 of 2005. Under the Ku-ring-gai Planning Scheme Ordinance the site is zoned Residential 2C, and under that statute such development is prohibited. The application was made under State Environmental Planning Policy No. 53, Metropolitan Residential Development, which is an overriding instrument under which the proposal is permissible with consent.

2 The site is 2024 sq m in area with frontage of 24.875 m. It has mature, high canopy turpentine trees on the street boundaries and some along the side boundaries. At the street front is a tall hedge and down the sides advanced screen trees and shrubs all of which, except a few, are to be kept and supplemented with additional vegetation.

3 In the front part of the site is a tennis court existing. The proposed detached two-storey new house is to go in that area with a 14 m front setback to the street. The house is designed in brick and tile construction with the upper floor having a smaller footprint than the ground floor such that there are tiled small roofs at the ground floor ceiling level that slope part way up the second storey walls, reducing its visual mass.

4 The existing driveway on the west side will give access to both the garage of the existing house north of the tennis court and the garage to the proposed house.

5 The tennis court is at ground level at the street, and due to a slight rise in the ground to the north there is an existing retaining wall about 2 m high adjacent the existing house. Between the retaining wall and the existing house is a manoeuvring area outside the garage to enable cars to turn around to exit in a forward direction. This space also allows visitors to park at the house rather than in the street with a 50 m walk to the house. 6 The existing house is single-storey and is built across the width of the allotment with small side setbacks, so there is no opportunity to relocate visitor parking for the manoeuvring space.

7 The existing house will retain at its rear a backyard about 20 m deep with a swimming pool in the private open space. Its living rooms face the north and this rear yard, ensuring that there is ample outdoor recreation area for it.

8 Junction Road is a busy road, possibly of arterial road status, that connects Wahroonga with Hornsby, and as a result has considerable traffic both at peak hours and during the day.

9 The proposal has designed the new house with its living rooms at the rear on the northern side. And there is a private open space courtyard between the house and the existing retaining wall. There is to be a fence on top of the retaining wall and vegetation to maintain privacy for the new house. The width of the courtyard enables sun to reach the living room windows of the new house between 9 am and 3 pm on 21 June.

10 The issues are: Streetscape and Visual Bulk 1. The proposal is inconsistent with cl 32(a) and (h) of the State Environmental Policy 53 cl 1(a) and (b) and 2(e) of Sch 9 of the Ku-ring-gai Planning Scheme Ordinance , and cl 4.9.1 of the Ku-ring-gai Dual Occupancy Code .

Particulars : (a) The proposed building setback from the southern (front) boundary is insufficient for Dwelling B. The new dwelling is located almost entirely forward of the building line of the adjoining dwellings. (b) The proposed new two-storey dwelling will be unsympathetic to adjoining development as the existing dwelling on-site and adjoining dwellings are all single-storey and have generous front setbacks. (c) The height, size, and bulk of the Dwelling B are not in keeping with that of neighbouring dwellings and the dwelling will be located in a prominent position in the front yard and well forward of the predominant building line in the immediate locality. (d) The setback does not increase as wall heights increase. The proposed new two-storey dwelling and 1.8 m high brick piers and gate at the street front will increase building bulk and result in the dominance of built form as viewed from the adjoining properties and the streetscape. 11 In regard to issue 1(d), the only reason for it is that there is one element of the streetscape elevation which occupies about a quarter of the width of the house and is a two-storey high wall. The remainder of the second storey is set back about 3 m from the front elevation as mentioned previously behind tiled half-roofs at the ground floor ceiling level. 12 Attending for the council are: + Mr Rigg of Deacons + Mr Liotta, town planner for the council.

13 Attending for the applicant are: + Mr Kondilios of Maddocks, instructed by Miss S Halls of Maddocks, + Mr I Glendinning, consultant town planner, and + Mr Cawthorne, applicant. 14 As can be understood from the issues, the parties summarised them as a single issue involving streetscape and front setback distance.

15 The respondent maintained the front setbacks of the adjoining houses, No. 120 at 35.5 m, and No. 125 at 28 m, meant the proposal was so out of character with the established streetscape that the proposal could not meet the requirements of cl 33 of the instrument. The respondent also pressed the council's code for dual occupancy which had been written for State Environmental Planning Policy 53, and said the setback requirement under cl 1.2(d), Aim of Good Design, and cl 4.9.1 Building Setback, meant the pattern of front setbacks of the neighbours determined the appropriate requirements for compatibility in the streetscape. The proposal at 14 m, the respondent said, could not achieve compatibility. The respondent pressed that the house be moved to give 18 m setback and that would be acceptable within the streetscape.

16 The applicant put that the code could not set a numeric distance when the State Environmental Planning Policy did not do so, as that could tend to make dual occupancies prohibited in certain locations when the intent of the instrument was to do the reverse. The key test of the matter is compatibility and contribution to the existing residential environment. 17 Mr Glendinning had observed the Junction Road streetscape. Along it were many different setbacks to existing houses. Some older houses up to say the period of the 1950s on both sides of the street were closer to the street than the proposal. Others in the 1950s to 1970s period on the north side had the 25 and 30 m setbacks due to a now repealed road-widening zoning. Some other grander houses had 20 m or more front setback.

18 Notably a recent subdivision of an old monastery property in Junction Road, slightly uphill from the subject site, had a number of new houses fronting the road, many of which had closer front setbacks than the proposal. There was, however, within that development quite varied front setbacks, as it had been developed under its own Development Control Plan that sought to protect existing trees, so that the new houses had been positioned to achieve that end.

19 The applicant brought the plans of a new house approved by council at No. 103 Junction Road, almost opposite the site, with an 11 m front setback.

20 When seen on-site, although the immediate neighbours had large front setbacks there were, only a few allotments away, houses that had similar setbacks to the proposal. There was a great variety in the pattern of setbacks.

21 Added to this the high canopy trees and the understorey shrubs and hedges dominated the streetscape. The particular site of this proposal, in preserving all the significant vegetation including the existing street front hedge, meant that the new house proposed would not compromise this dominance of vegetation. 22 Another consideration is that moving the house back to an 18 m setback, indeed even a house of another design, would almost certainly eliminate the north-facing private open space courtyards adjoining the living rooms of the proposal.

23 The proposed new house is 250 sq m in area which is not a large house for this locality. The floor space ratio of it and the existing house on the subject allotment is 0.24:1 whereas State Environmental Planning Policy 53 allows 0.5:1. As a result, one could not say the density of site development or bulk of the proposal is excessive. Indeed the front setback was the only issue where the council claimed unacceptable impact.

24 Another impact of moving the house back to the 18 m sought by the council is that it would move the north-facing living rooms of the proposal into the shadows of the northern privacy fence on top of the retaining wall in mid-winter.

25 Still another impact would be if the existing retaining wall was demolished and there was to be excavation northwards to create a private open space for a relocated house, and to avoid overshadowing, it would eliminate the car manoeuvring area and visitor parking of the existing house. 26 The applicant noted that even though the council code should not determine the front setback, if it did, then cl 4.9.1 said: If the established setback is inconsistent with the standard 12 m front setback set in the code, then 12 m should apply. 27 In the applicant's opinion the huge variety of front setbacks in Junction Road meant there is no "established" setback in Junction Road and so twelve metres is the applicable distance. The proposal, with 14 m, is more generous than the code requires and therefore it could not be a reason for refusal.

28 The applicant tendered a number of additional conditions in Exhibit F that were amendments to the council's conditions in Exhibit 7 and both parties had agreed that the changes were an improvement to the proposal on various minor matters.

29 I have come to the conclusion that the proposal as designed is acceptable under the terms of State Environmental Planning Policy 53, especially in regard to its compatibility with the existing streetscape as referred to in Project Ventures v Pittwater, Appeal 11209 of 2004.

30 The applicant sought costs due to its offer of consent orders settlement on 19 August 2005. The applicant claimed if the Court determined in its favour that costs since 19 August should be awarded as costs thrown away. 31 The respondent noted the applicant did not avail itself of a s 82(a) review by the council and proceeded to litigation. The council had determined its position on the refusal as set out in the issues and it was not an unreasonable position to take and to defend, given the terms of the statute in regard to streetscape.

32 I agree with the respondent's submissions on costs.

33 Therefore the orders of the Court are: 1. The appeal is upheld. 2. Development consent is granted for 9 detached dual occupancy under State Environmental Planning Policy No. 53 as shown on Drawing Nos. G0505-DA00 to DA16 by GGF Architects and L-01B by Ecodesign and 353043/C1 Rev.0 and /C2 Rev.A by AFCE Environment and Building, all as amended by and built in accordance with the conditions in Annexure "A" hereto. 3. The exhibits are returned to the parties except Exhibits A, B, C, F, 3, 4 and 7. 4. No order as to costs. _______________________ K G Hoffman Commissioner of the Court Rjs/ljr

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.