Coles & Merc v Ku-ring-gai Council

Applicant:: LEGAL REPRESENTATIVES: Mr D Baird, solicitor of Maddocks Respondent: Mr A Galasso, barrister instructed by Mr P Marincowitz of Phillips Fox

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10732 of 2006 Coles & Merc Pty Ltd v Ku-ring-gai Council

JUDGMENT 1 Senior Commissioner: This is an appeal against the deemed refusal by Ku-ring-gai Council (the council) of a development application to demolish the existing buildings on an amalgamated site consisting of lot B DP 166200 (known as 3 Bundarra Avenue South, Wahroonga), lot A DP 166200 (known as 5 Bundarra Avenue South), lot 1 DP 11176 (known as 7 Bundarra Avenue South), lot 2 DP 11176 (known as 9 Bundarra Avenue South), lot 20 DP 849795 (known as 11 Bundarra Avenue South), lot 21 DP 849795 (known as 13 Bundarra Avenue South) and lot C DP 411946 (known as 10 Woonona Avenue South) and to erect a medium density housing development comprising 66 dwellings in two five-storey and one three-storey buildings.

The site 2 The site is an amalgamation of seven allotments in Wahroonga: lot B DP 166200 (known as 3 Bundarra Avenue South), lot A DP 166200 (known as 5 Bundarra Avenue South), lot 1 DP 11176 (known as 7 Bundarra Avenue South), lot 2 DP 11176 (known as 9 Bundarra Avenue South), lot 20 DP 849795 (known as 11 Bundarra Avenue South), lot 21 DP 849795 (known as 13 Bundarra Avenue South) and lot C DP 411946 (known as 10 Woonona Avenue South) 3 Apart from the access handle, which is zoned 2(c) (low-density housing), the site is zoned 2(d3), a zone that allows flats up to five storeys. The site's area is 5,931m2, including the access handle, which is 441m2, making the site proper 5,490m2. There are now seven houses on the site. Two of the allotments are battle-axe lots, while the others have frontages to Bundarra Avenue. Almost adjoining the site is 14 Woonona Avenue, a property called "The Briars" that is listed on the State Heritage Register. 4 To the west of the site is the Sydney-Newcastle Freeway and to the south Pacific Highway. Immediately adjoining the site are detached houses with lots sizes of around 900m2. Further to the north is Abbotsleigh Junior School. To the west on Bundarra Avenue is a group of townhouses. Wahroonga railway station is about 400m "as the crow flies", but about twice that distance by walking.

The proposal 5 The applicant proposes to demolish the existing structures on the site and to erect a housing development consisting of three buildings (Buildings A, B and C). The proposal is for all three buildings to be five-storeys high; however, during the hearing the height of Building B was subject of much evidence. Following this evidence and for reasons that become clear later in this judgment, the appropriate height for Building B was determined as three storeys. Building C was also amended during the hearing in order to bring the proposal into compliance with the site coverage control of 35%. 6 The original proposal was for 76 dwellings. The amendment of Building C resulted in the loss of two dwellings. The amendment of Building B resulted in the loss of eight dwellings. The amended proposal therefore contains 66 dwellings.

Relevant planning instruments and policies 7 The most relevant planning instrument for this proposal is the Ku-ring-gai Planning Scheme Ordinance as amended by Local Environmental Plan 194 (LEP 194). State Environmental Planning Policy 65 - Design Quality of Residential Flat Buildings (SEPP 65) applies, as does its accompanying document Design of Residential Flat Buildings. State Environmental Planning Policy 1 - Development Standards (SEPP 1) applies to the variation of any development standards.

The issues 8 The council submitted a Statement of Issues containing 13 issues. During the hearing the following emerged as the major issues: · Impact on the heritage significance of 14 Woonona Avenue, "The Briars"; · Exceedence of the 35% site coverage; · Less than 50% deep soil planting; · Solar access to proposed units; · Car parking; and · The objectors' concerns. 9 As a result of changes to Building C, the issue of site coverage was resolved. The issue of deep soil planting, if not fully resolved, was greatly reduced. As a result of the reduction in dwellings that occurred during the hearing, the issue of car parking was resolved. Apart from the objectors' concerns, the remaining issues were therefore heritage impact and solar access.

Impact on the "Briars" 10 The heritage experts were Mr L Tropman for the applicant, and Mr P Dignam for the council, both heritage and conservation architects. They agreed that "The Briars" was an important item of heritage; hence its being listed on the State Heritage Register. They also agreed that the front of the building was more important than the rear and that the impact of the proposal would fall on the rear. 11 While the two experts agreed that there would be an impact on the rear, they disagreed on the magnitude of the impact. Mr Dignam thought the impact unacceptable, while Mr Tropman thought that it would diminish the heritage significance of "The Briars". Mr Tropman's opinion was influenced by the fact that the rear garden was not original, that Building B was not immediately adjacent and that it was screened by trees and of good design. In Mr Dignam's opinion a three-storey Building B would be acceptable; however, not one that is partially three-storey. 12 In Anglican Church Property Trust v Sydney City Council [2003] NSWLEC 353, the Court dealt with impacts of a proposed development on an adjacent heritage item. In doing so, it set out four planning principles to be applied, ie · First, new development should not unreasonably reduce public views of the heritage item and its setting. This is because the pleasure people derive from a landmark heritage building is by viewing it. If one cannot see a landmark, it ceases to be one. · Second, new development should not visually dominate the heritage building. A dominant new building, even when it does not obscure the heritage building, will render the experience of seeing the heritage building more complex and less delightful. · Third, new development should not unreasonably overshadow the heritage building. · Fourth, new development should relate to the character and form of the heritage item. This does not require imitating style or using the same materials. It requires only that new development should sit comfortably in a view that embraces both the old and the new. 13 The second and fourth principles apply in the present case, with the difference that the issue here is not so much a view that encompasses the heritage item and the new proposal, but rather the view from the heritage item. It seems to me that a five-storey building immediately in view from the rear veranda and garden would render the experience of being in "The Briars" less memorable and less of a heritage experience. Part of the magic of visiting a heritage property is that one imagines oneself living at a time in the past. A tall building just beyond the fence would destroy that experience. In coming to this conclusion, I have taken into account that the rear garden is not original. However, it is highly attractive and is likely to be the place where many of the visitors to "The Briars" will congregate. 14 The applicant provided sketches (including perspectives) of three alternative ways in which the impact of Building B could be reduced. The first was the deletion of two floors (Option A); the second, a building with three floors close to the heritage item and five floors in the farther section (Option B); and the third, a building with three floors close to the heritage item and four floors in the farther section (Option C). It seems to me that the only way to achieve an acceptable impact is to fully remove the fourth and fifth floors, ie Option A. The other alternatives would be half-baked solutions: they would reduce the proposal's yield without retaining the wonderful ambiance of "The Briars". Even with Building B reduced to three storeys, there would be an impact on the ambiance of the rear yard; however, given the zoning of the land, this is an impact that should be accepted. 15 In coming to the above decision, I have borne in mind the high level that "The Briars" occupies in the hierarchy of heritage items. There is only a small number of such fine and intact buildings in existence. I am aware that the deletion of two floors on Building B reduces the yield of the proposal by eight dwellings and I would not require such a drastic reduction for the sake of a less significant heritage item. As it is, however, "The Briars" is of State significance, of exceptional quality and it would be wrong to diminish the enjoyment that its owners and its many visitors now derive from it.

Solar access to proposed dwellings 16 The Court-appointed planning expert was Mr A Lester, an architect planner. The applicant's planning expert was Mr N Dickson, also an architect planner, who was the proposal's designer. The experts agreed that the proposal's solar performance could be improved. Mr Dickson was certain that 70% of the apartments could achieve three hours of sunlight, this being the "rule of thumb" in the Residential Flat Design Code. Mr Lester agreed that this was likely, though he could be sure only after examining the detail.

The objectors' evidence 17 All the objectors were concerned about the proposal's impact on traffic. I deal with this issue at the end of this section. 18 Mrs A Brown, who lives at 13/1683 Pacific Highway, objected to the proposal being only 6m from the common boundary resulting in overshadowing. The experts agreed that there would be no major shadow impact on any property apart from 1 Bundarra Avenue. (The council considered that that impact was acceptable since No 1 is also zoned 2(d3) and is unlikely to remain a single dwelling.) I note that a 6m setback complies with requirements. However, the changes to the proposal that occurred during the hearing have increased the setback of Building C, reducing the impact to neighbours to some extent. 19 Mrs Eileen Smart, who lives at 15 Bundarra Avenue, objected to the non-compliance with site coverage, the five-storey height and the yield of 76 dwellings, which was too high. Her husband, Mr J Smart, endorsed her opinions. The changes that occurred during the hearing meet Mr and Mrs Smart's objections, if not fully, then at least to a large extent. 20 Mr M Arnett, who lives at 1/17a Woonona Avenue, objected to the five-storey height, the impact on "The Briars", insufficient parking and too high site coverage. The changes to the proposal meet most of Mr Arnett's concerns. 21 Ms C Logie, who lives at 8/1683 Pacific Highway, feared overshadowing and objected to the five-storey height. In the experts' opinion, there will be no unreasonable impact on Ms Logie's sunlight. The changes to the proposal meet Ms Logie's concern about the five-storey height, at least to some extent. 22 Mr G McClelland, who lives at 4/16 Woonona Avenue adjoining the proposal, was concerned about a five-storey building close to his house. The height of building B has now been reduced to three storeys. 23 Mr J Fuller, who is the owner and resident at 14 Woonona Avenue "The Briars", was concerned that the five storey Building B will be visible from his veranda and rear garden. He pointed out that "The Briars" is one of the few privately owned properties on the State register, that he is required to maintain it in good order, and that it is open to the public once a year and on other occasions at the request of the National Trust. He expects, therefore, that adequate protection would be given to its heritage significance. He considered that a two or three-storey building in the location of proposed Building B would be acceptable. Most of Mr Fuller's concerns are met by the changes in the proposal. 24 Mr M Anderson, who lives at 4/8 Bundarra Avenue and Mr F Bowman, who lives at 14 Everett Way, were concerned only with traffic impact. Mr J Piccoli, the council's Strategic Traffic Engineer, gave evidence in relation to the objectors' concern. Mr Piccoli said that the proposal's impact would be minor, due to the fact that the peak traffic generated by the development occurred at different times from the existing peak congestion in the area. The council had examined the traffic implications when it considered the proposal and came to the conclusion that: · The proposal is not considered to have significant additional impact to traffic volumes in Bundarra Avenue South and Everett Way; however it may have some minor additional impacts to traffic volumes in the Wahroonga town centre, particularly during the evening peak. · The cumulative traffic generation of the proposal and other medium density developments in Bundarra Avenue South are not considered to impact significantly on vehicular access from Bundarra Avenue South into Pacific Highway. 25 In the light of Mr Piccoli's evidence I conclude that the objectors' fear that the proposal would worsen the existing difficult traffic in the area is not justified.

Conclusions 26 This well-designed proposal had two major problems in the form in which it was first formulated: it impacted adversely on "The Briars" (a heritage item on the State Heritage Register) and it failed to comply with the maximum 35% requirement for site coverage in LEP 194. The applicant accepted that a reduction in the footprint of Building C was necessary to achieve compliance with the site coverage requirement. The applicant also suggested three alternative ways in which the impact on "The Briars", of which Option A would delete the top two floors of building B and thus reduce the impact on the heritage item to an acceptable level. 27 The applicant provided the amendments at a mention on 4 May 2007. Mr Lester reported that the amendments reflect the Court's judgment. The amendments also resolve (or nearly resolve) the issues of deep soil planting and car parking. To the extent that the deep soil planting may be slightly below 50%, the applicant submitted an Objection under State Environmental Planning Policy 1. The parties agreed that the Objection was well founded and may be upheld. In the circumstances nothing stands in the way of the Court's upholding the appeal.

2. Development application to demolish the existing buildings on an amalgamated site consisting of lot B DP 166200 (known as 3 Bundarra Avenue South, Wahroonga), lot A DP 166200 (known as 5 Bundarra Avenue South), lot 1 DP 11176 (known as 7 Bundarra Avenue South), lot 2 DP 11176 (known as 9 Bundarra Avenue South), lot 20 DP 849795 (known as 11 Bundarra Avenue South), lot 21 DP 849795 (known as 13 Bundarra Avenue South) and lot C DP 411946 (known as 10 Woonona Avenue South) in order to erect a medium density housing development comprising 66 dwellings in two five-storey and one three-storey buildings, is determined by the grant of consent subject to the conditions in Annexure A.

3. The exhibits are returned except Exhibits A and 7.

      Dr John Roseth
      Senior Commissioner

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