De Stoop v Ku-ring-gai Council [2010] NSWLEC 1019 | Case summary

De Stoop v Ku-ring-gai Council [2010] NSWLEC 1019 | Case summary | Zoe

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JUDGMENT 1 The applicant in these proceedings is seeking to erect a multi-level seniors living development comprising 35 dwelling units on the site known as 1574 to 1578 Pacific Highway, Wahroonga. The proposal includes the demolition of an existing two-storey dwelling on a battle axe allotment at the rear of the two-storey heritage listed dwelling known as 'Rosemorran'. The heritage item is to be retained and adapted as part of the proposal to provide communal facilities on the ground floor and two units on the first floor. The proposal provides for basement parking for 46 vehicles and the building is 2 to 5 storeys. Site and environs 2 The subject site is located on the western side of the Pacific Highway between Munderah Street to the north and Gilda Avenue to the south. The site comprises two allotments being Lot 1 DP 315957 and Lot A DP 334713, respectively known as 1574-1576 and 1578 Pacific Highway Wahroonga. 3 The frontage to the Pacific highway is some 42 metres with the rear boundary of 40 metres and a northern side boundary of 124 metres and southern boundary of about 140 metres. This yields the site area of 5112 square metres including the right of carriageway with an area of approximately 380 square metres. The land falls away from the Pacific highway to the rear boundary with a fall of about 11 metres. 4 The subject sites are within a well vegetated residential area. To the north is the recently constructed Meriton residential apartment development, known as 'Lexington", comprising six buildings varying in height from three to five storeys containing 138 units. The southern boundary of the subject site forms the rear boundary of mostly single storey dwelling houses with front and rear gardens on large allotments that have frontage to Gilda Avenue. To the east, on the opposite side of the Pacific Highway is the Knox College. 5 Figure 1 shows the site in the context of surrounding developments prior to the completion of the Meriton apartments. Contentions 6 The following contentions were contained in the council's statement: 1. Height bulk and scale The development would present an excessive height bulk and scale, Particulars (a) The site is zoned Residential 2(c) and Residential 2(c2). Residential flat buildings are prohibited development in these zones: clause. 23 KPSO. (b) The proposed building is higher than allowed on land where residential flat buildings are not permitted: clause. 38(4)(a) SEPP 2004. (c) The proposed building contains more than two levels adjacent to site boundaries: clause. 38(4)(b) SEPP 2004. (d) The proposed building contains more than one storey in the rear 25% of the site: clause. 38(4)(c) SEPP 2004. (e) The SEPP 1 objections are not well founded. (f) The proposal fails to achieve the objectives of: (i) SEPP 2004 - cll. 31(a), (c)(i),(ii)&(iv); 38(4)(a),(b)&(c); 81 (a)&(b) (ii) SEPP 65 -cll. 10 & 12. (iii) Sections 1-4 of Seniors Living Policy - Urban Design Guidelines for Infill Development. 2. Context, siting and character The development is out of context, inappropriately sited and is out of character with the transitional zone location between medium and low-density residential development. Particulars The proposed development is contrary to the provisions of: (i) Clauses 31 (a) & (c)(i) SEPP 2004. (ii) Clauses 9 & 11 of SEPP 65. (iii) Sections 1-4 of Seniors Living Policy - Urban Design Guidelines for Infill Development. 3. Heritage The development will have a significant detrimental impact on the natural and built heritage values of the site and should not be approved. Particulars The proposal does not satisfy the provisions of the following planning controls: (I) Clause 31(b) - SEPP 2004. (ii) Clause 9 - SEPP 65 (iii) Clause 61 D(2) - KPSO. 7 The issues can be summarised as: whether the SEPP 1 objections to vary the standards contained in the Seniors Living SEPP should be allowed. This is with respect to the development standards of: 8 metres height; two storeys; and single storey for the rear 25% of the site. The other main issues are: the impacts on the heritage item; and the impacts on the adjoining properties, in particular the Gilda Avenue properties and units in the Lexington units. Statutory planning framework 8 The development application was submitted under the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP 2004). The application was lodged in 2007 and the respondent tendered a copy of the SEPP, Exhibit 4, under which the DA is considered. It is noted the clause numbering has changed in later amendments; for example, the clause 40 now contains the development standards that were clause 38 in Exhibit 4. 9 The aims of this Policy at clause 2 are to encourage the provision of housing that will: a. increase the supply and diversity of residences that meet the needs of seniors or people with a disability, and b. make efficient use of existing infrastructure and services and c. be of good design 10 These aims are to be achieved by: a setting aside local planning controls that would prevent the development of housing for seniors… that meets the development criteria and standards specified in this Policy, and b. setting out design principles that should be followed to achieve a building form that responds to the characteristics of its site … 11 The Policy applies to land where dwelling houses and residential flat buildings are permissible. This includes the subject site that is zoned partly 2(c) and partly 2(c2) under the Ku-ring-gai Planning Scheme Ordinance. Figure 2 is an extract from the zone map.

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12 Clause 5(3) states that: the SEPP prevails to the extent of any inconsistency with any other environmental planning instrument. 13 Division two of the SEPP contains provisions for design principles and in particular clause 31 states that the proposed development should: (a) recognize the desirable elements of the locations current character (or in the case of precincts undergoing a transition, where described in local planning controls the desire future character) so that new buildings contribute to the quality and identity of the area, and (b) retain compliment and sensitively harmonise with any heritage conservation areas in the vicinity of any relevant heritage items that are identified in a local environmental plan and (c) maintain reasonable neighbourhood amenity and appropriate residential character by: (i) providing building setbacks to reduce bulk and overshadowing (ii) using building form and siting that relates to the sites landform (iii) adopting building heights at the street frontage that are compatible in scale with adjacent development, and (iv) for considering where buildings are located on the boundary the impact of the boundary walls on neighbours. 14 The SEPP states at clause 32 that the proposed development should consider the visual and acoustic privacy of neighbours in the vicinity and residents by: (a) appropriate site planning the location and design of windows and balconies, the use of screening devices and landscaping and (b) ensuring acceptable noise levels in bedrooms of new dwellings by locating them away from driveways, parking areas and paths. Clause 29 Design of in-fill self-care housing In determining a development application made pursuant to this Chapter to carry out development for the purpose of in-fill self-care housing, a consent authority must take into consideration (in addition to any other matters that are required to be, or may be, taken into consideration) the provisions of the Seniors Living Policy: Urban Design Guideline for Infill Development published by the Department of Infrastructure, Planning and Natural Resources in March 2004. Clause 30 Design of residential development A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the principles set out in Division 2. 15 For daylight and solar access clause 33 states that the proposed development should: (a) ensure adequate daylight to the main living areas of neighbours in the vicinity and residents and adequate sunlight to substantial areas of private open space, and (b) involve site planning, dwelling design and landscaping that reduces energy use and makes the best practicable use of natural ventilation, solar heating and lighting by locating the windows of living and dining areas in a northerly direction. 16 Part four of the SEPP provides development standards and clause 38 a consent authority must not grant consent to a development application unless the proposed developments for seniors housing complies with the set standards specified. This includes a minimum site area of 1000 square metres, a site frontage of at least 20 metres at the building line. 17 Sub-clause (4) states: If development is proposed in a residential zone where residential flat buildings are not permitted: (a) the height of all buildings in the proposed development must be 8 metres or less and (b) a building that is adjacent to a boundary of the site must not be more than two storeys in height and (c) a building located in the rear 25% of the site must not exceed one storey in height. 18 The proposed development exceeds the above numerical controls and State Environmental Planning Policy No. 1 objections were submitted by the applicant for a variation to these standards. That is the height, the two-storey limitation and the 25% rear single storey controls. 19 Part 7 of chapter 3 sets out development standards that cannot be used as grounds to refuse consent and for self-contained dwellings. This includes: a building height less than 8 metres; a floor space ratio of 0.5:1 or less; and for deep soil zones in relation to that part of the site not built on paved or sealed the soil is to be of a sufficient depth to support the growth of trees and shrubs on an area of not less than 15% of the area of the site. Two thirds of the deep soil zone should preferably be located at the rear of the site and each area forming part of the zone should have a minimum dimension of 3 metres. If a minimum of 30% of the site is to be landscaped then this is also not a ground on which to refuse consent. 20 For solar access the standard is for a minimum of three hours direct sunlight between nine and three midwinter to a minimum of 70% of the dwellings. 21 The Urban Design Guidelines for infill development for Seniors Living was prepared by the Department of Planning to assist in the design and assessment of development applications under the Seniors Living SEPP. This emphasises the importance that all development should adopt a contextual approach. That is the design should respond to both neighbourhood and streetscape character and the opportunities and constraints offered by the specific site. 22 The objectives of site planning and design include: to minimise the impact of new development on neighbourhood character, to provide high levels of amenity for new dwellings and to provide housing choice through a range of dwelling sizes. 23 Under built form the following are included: locate the bulk of development towards the front of the site to maximise the number of dwellings with frontage to a public street. parts of the development towards the rear of the site should be more modest in scale to limit the impacts on adjoining properties. 24 The guidelines for impacts on streetscape include that: New infill developments needs to achieve an harmonious fit with the existing streetscape character or desired future character. New development should present attractively to the street and complement surrounding dwellings. Both existing residents of an area and potential residents of the new development prefer housing that blends into the local area. Key issues that impact on the streetscape include: the design and proportions of building facades and roof forms; fences and landscaping; design of the front setback; the size and treatment of vehicle entries; potential for retention of existing vegetation. 25 For impacts on neighbours the design objectives include: to minimise impacts on the privacy and amenity of existing in neighbouring dwellings pointed to minimise overshadowing an existing dwellings and private and space to retain neighbours views and outlook to existing mature planting a tree canopy to reduce the apparent bulk of development and its impact on neighbouring properties to provide adequate building separation. 26 The design principles include protecting neighbours' amenity by carefully designing the bulk and scale of new development to relate to the existing residential character, for example by stepping the storeys back behind the building line. 27 With trees and landscaping in deep soil zones the guidelines provide that plantings be used to buffer between new and existing dwellings and to locate deep soil zones to provide privacy between new and existing dwellings. 28 Rules of thumb include that solar access to private open space of neighbouring dwellings should not be unreasonably reduced and living rooms of neighbouring dwellings should receive a minimum three hours direct sunlight. 29 Under the Ku-ring-gai Planning Scheme Ordinance the lot containing the heritage item is in zone 2(c) and the rear battleaxe lot is in zone 2(c2) together with the properties that have frontage to Gilda Avenue. To the north of the subject site where the Meriton apartments have been constructed the land is zoned 2(d3). A zoning extract is provided at figure 2. 30 Clause 61D for alterations, demolition etc to a heritage item the Council must have regard to the effect on the heritage significance of the item and any stylistic or horticultural features of its setting. Similarly clause 61E requires an assessment of development in the vicinity of a heritage item as to its impact on the item and it's setting. 31 The LEP contains provisions for incentives for conservation of heritage item at clause 61H and the consent authority may exclude from the calculation of the floor space ratio, the floor space of the heritage item if the council is satisfied that the conservation of the building depends on the Council granting consent.

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Evidence 32 For the respondent Council expert evidence was given to the Court by: Mr Michael Ball, town planner, Mr Scott Robertson heritage architect; Mr Geoff Bird, Council's landscape expert, and Mr Scott Pedder, urban designer. On behalf of the applicant expert evidence was given by Mr Kerry Nash, town planner, Mr Brian McDonald heritage architect and town planner, Mr Timothy Creer, landscape architect, Mr Peter Castor arborist and Ms Amelia Starr, access consultant. 33 The traffic experts, Mr Lyle Marshall for applicant and Ms Kathy Hawken for the Council provided a joint statement wherein there are no outstanding traffic and parking matters. 34 The Court met on site with the parties on the first morning of the hearing and heard from a number of resident objectors and carried out an extensive site inspection viewing the subject site from a number of the apartments in the Meriton "Lexington" development and a number of the properties in Gilda Avenue in particular numbers: 3,5,7 and 9. A significant number of objections were received in response to the proposed development being advertised and the re-notification that occurred for the amended plans. The respondent has also provided folders of written objections to the proposed development and that the amendments. 35 Concerns expressed to the Court include that the zoning of the subject property, that is2(c ) and 2(c2), does not allow residential flat buildings and the proposal shifts the problem of residential flat buildings further south like a domino effect. It was also stated that SEPP 1 should only be used for minor variations to standards. 36 Residents of Gilda Avenue are concerned about noise, traffic and privacy and the loss of a leafy green between the Lexington development and their properties. They also expressed concern about impacting of the peaceful safe environment of the street and that 75% of the homes are single storey and there are many children that live in the street. It was also stated that you would see the bulk of the proposal from not only the rear of the houses but from the street in Gilda Avenue and that it would be an unbroken eyesore. Concern was also expressed about the adverse impact on the privacy of the rear yards and the overlooking and lights from the balconies and windows. 37 The objections from the 'Lexington' apartment blocks expressed concern about the height bulk and loss of a leafy outlook and the adverse impact on the residential amenity of a number of the apartments in the Lexington that currently enjoy privacy and an open view and the light to some apartments would be blocked and the units overlooked by a 4 storey development. Noise was also raised as a concern. 38 The owners of the properties in Gilda Avenue expressed concern that the zoning does not allow residential flat buildings and the proposal will present as a bulky building on the northern rear boundaries of their properties and that there would be unacceptable overshadowing of their rear gardens. The owners of numbers three and five also had submissions prepared on their behalf that were tendered to the court. 39 Representations were made for and by the owners of number 5 Gilda Ave on both the original plans and the amendments. It was submitted on the owners behalf that the revised SEPP 1 objection is not well founded and that a single storey element in the rear 25% of the site could not reasonably be found to hinder the objects of section 5 of the act. It was also submitted that the mature trees at the rear of number five should not be relied upon and the overshadowing of the proposal to the rear of number five is unacceptable. 40 Documents were also prepared on behalf of the owners of No. 3 Gilda Ave. The owner also gave evidence in Court on the amended plans and expressed concern about the constant inaccuracies in the plans in particular where he is dwelling was shown in the wrong location and a large portion of their rear yard, in particular the swimming pool in winter, would be overshadowed by the proposed building some 60 m long on his rear boundary. For the revised shadow diagrams of the amended plans concern was still expressed in that the proposal represents an enormous building that will appear as a commercial development. He is concerned that the site analysis did not describe the surroundings and in particular did not show his swimming pool area in the backyard entertaining area. In his opinion the impact on be adjoining Gilda Avenue properties and it should not be allowed in this low-density residential area and is more appropriate for the 2(d)3 zone. 41 After the hearing resumed in Court and evidence was heard from a number of experts and the applicant sought to amend the plans. It was agreed that the amended plans be re-notified and further submissions were received. Owners of properties on the southern boundary of the subject site had further submissions prepared on their behalf. While not experts in the proceedings I have had regard to their comments together with all the other evidence to the court. The experts also provided further joint reports in particular on the landscaping and the built form and heritage. 42 The planners summary of amendments to the proposal is as follows: (a) deleting the second story from the building including consequential internal planning (b) increasing the setback to the southern boundary so that there is a clearance of not less than 3 m from the boundary to the basement wall (c) increasing the setback to the new top floor so that the setback from the boundary to the face of the building is not less than 9 m (d) deleting all balconies on the southern facade which have a balcony on the northern facades (Mr Ball notes that this had not been done for any of the units on the terrace level 1) (e) deleting one unit from the western most end of the new top floor of the proposal and Orienting the balconies to the West. 43 The amended proposed Seniors Living development retains the heritage listed two-storey dwelling 'Rosemorran' and proposes part three and part four-storey residential building with a portion between grid lines 2 to 4 being 5- storeys for a length of approximately 12 metres at the rear of the site. The revised proposal provides for 35 self-contained dwellings plus associated parking. 44 Mr Ball and Mr Nash provided concurrent evidence on the amended plans. From the southern boundary to the face of the proposed building it is 9 metres and to the Western boundary 4 metres with the exception of the North Eastern Corner that is 11.2 metres. The proposal with the 3 metres setback to the basement for the southern boundary now provides 46 car parking spaces in the basement and 3 at grade. The FSR is approximately 1:1, including the heritage item. 45 There was discussion between the experts on the design of unit T1.03 to delete the southern balcony and provide a western facing balcony by deleting one of the two bedrooms. Similarly the experts agreed on a condition to delete balconies on the southern side not picked up in the amended plans. 46 In Mr Ball's opinion he stated that: "although the bulk and scale of the proposal has been reduced, in my view it is still excessive. The reason I say that is that the four most elemental aspects of SEPP 2004 are still breached in this application. Those being the 8 m height control, the two-storey control, and the 25% one storey rear control and the fourth of course being the FSR… which is double the guidelines set out in the SEPP" 47 On questioning Mr Ball agreed that the FSR is not a development standard under the SEPP. 48 Mr Nash is of the opinion that there are no direct amenity impacts that is overlooking and overshadowing, on the properties to the south. He agreed that bulk scale and appearance and outlook is of itself an aspect of amenity. He commented on cross-examination that: "because of the physical separation distances that there is no aspect of outlook as to loss of sky and the like occurring. In terms of visual dominance if the house and private open space was 10 metres or 5 metres then it would have weight. In this instance in the circumstances of this case, it does not have any weight in my opinion, and in terms of privacy and overshadowing you go to actual impacts and I've done that in respect of overshadowing and in terms of privacy… there are no an adverse amenity impacts arising from non-compliance. The reality is that the outlook is of the Meriton development irrespective of the zone… there is no adverse amenity impacts arising from the height, bulk and massing of this building at the rear 25% of the site 49 Mr Nash is of the opinion that the exceedence of the single storey standard at the rear does not offend and he stated that: It is driven by the retention of the heritage item and the curtilage at the front and the principle landscape setting at the front and the placement of the new accommodation at the rear of the site utilising the 11 m fall in the topography from the street to the rear. If the site was not constrained by the heritage building and its landscape setting at the front then the building could be placed probably on the same setback from the Pacific highway as the Meriton block. You would place two thirds of the deep soil zone at the rear of the land if there was no constraint on the site. So if you look at a different solution that retains and utilises the heritage building, achieves the disabled access aspects, and then assess what are the impacts of that building being placed at the rear the site… there are no negative outcomes in terms of visual bulk or outlook because of the physical separation between those to the south west and north. There are no privacy impacts, again because of the physical separation distances… 50 Mr Ball and Mr Nash agreed that at the equinoxes there will be no overshadowing impact to the rear of the properties in Gilda Avenue as the shadows will fall within the subject site or within the fence line shadow. 51 I will deal first with the SEPP 1 objections to vary the standards at clause 38 of the Seniors Living State Environmental Planning Policy as these are threshold questions. 52 The State Policy 38(4) states: if the development is proposed in a residential zone where residential flat buildings are not permitted: (a) the height of all buildings in the proposed development must be 8 metres or less and (b) a building that is adjacent to a boundary of the site (being the site not only of that particular development but also of any other associated development which this policy applies) must be not more than two-storeys in height. Note : the purpose of this paragraph is to avoid an abrupt change in the scale of development in the streetscape. (c) a building located in the rear 25% area of the site must not exceed one story in height. 8 metre Height Standard 53 The exceedences to the 8 metre height limit of the amended plans vary across the site as shown by a number of grid lines as follows: At gridline 9, 0 metre (0) At gridline 8, 0 metre (0.5) At gridline 7, 1 metre (2) At gridline 6, 1.8 metres (3) At gridline 5, 2.6 metres (3.6) At gridline 4, 3.2 metres (4.4) At gridline 3, 3.4 metres (4) At gridline 2, 2.4 metres (6)

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54 The figures in brackets are taken at the centre line of the building and the first figures indicate from the ground level at the southern boundary, which is higher than the ground level of the actual face of the proposed building. 55 The experts agree that the object of the standard is not stated however they agree the underlying objective or purpose of the standard is to limit development in areas not zoned for residential flat buildings to three storeys in order to ameliorate the potential for amenity impacts on adjoining residential properties and to be in character with residential zones where residential flat development is not permitted. 56 Mr Nash is of the opinion that compliance with the 8 metre height standard would in the circumstances of this case hinder the attainment of the objects of the Act specified in 5(a)(i) and (ii) given the topography of the site, retention of the heritage dwelling and landscaped curtilage and the transition in height and scale from the six-storey development to the north of the subject sites to the single dwellings development to the south. In his opinion the revised proposal provides a stepping down at the western rear end of the building to respond to the height and scale of Block G to the West. The retention of the heritage item and its landscaped curtilage would ensure that the proposed new building at the rear will not be visible from the public domain Pacific Highway The proposal will also not be visible from the public domain in Gilda Avenue. 57 Mr Nash considers that the standard is unreasonable and necessary in the circumstances of the case because in streetscape terms the view of the proposed development from the public domain will remain unchanged a result of the retention of the heritage item and the landscaped front yard, He considers that the proposal retains the existing heritage item of 'Rosemorran' that has a roof Ridge of RL203.4 metres and in the maximum height of the roof component of the new building is RL199.25. He further considers that the new development is located at the rear and given the fall of the site of 11 metres will not be visible from the highway due to topography. Mr Nash is of the opinion that the building provides a transition between the residential flat buildings to the north and the two-storey scale of Guilda Avenue some of 40 metres away 58 Mr Ball is of the opinion that the objection is not well founded. The dwelling houses on the Gilda Avenue land south of the site are located at the front of the lots with rear aspects and private open spaces directly facing the proposal, which is in breach of the standard. Under the council's planning controls the subject land could be developed for dwelling houses up to 8 m in height would be expected. Such development could be expected to be in several separate detached buildings. In contrast the proposal is for a building of up to five storeys with a continuous side wall. Mr Ball says that the subject land is not in a transitional area as claimed in the SEPP 1 objection. 59 It was submitted by the respondent that the non-compliance is equivalent to one and 1 1/2 storeys above the 8 m standard between grid lines 2 to five the proposal is three storeys higher than the standard. The non-compliance in respect of 5 to 7 Guilder Ave he submits is one to two storeys. It was also submitted that the object and purpose of the standard is not only to minimise adverse impacts of overshadowing and overlooking it is also to minimise amenity impacts including less tangible concepts such as reasonable expectations of the neighbourhood as well as bulk and scale and the impact on views, aspect and loss of view. 60 In my assessment of clause 38(4) (a) of the 8 m standard I accept the underlying purpose of the standard is to provide a development that will be compatible with the adjoining residential area and not create adverse impacts having regard to the desirable elements of the location and character of the area. I also recognize that the extent of a non-compliance is not the test and that a detailed assessment of the facts and the relationship of properties in their context is required with a focus on the underlying objective/purpose of the standard. 61 I am satisfied that in the circumstances of this case under clause 3 of the Policy that strict compliance with the 8 metre height limit is unreasonable and unnecessary and would tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the act. The circumstances of this case are that the proposal incorporates the heritage item Rosemorran and utilises the 11 m fall in the land to accommodate a seniors living development that in my assessment will be compatible with the surrounding area. I am satisfied the proposal will not be anti- pathetic to the underlying purpose. 62 Mr Pickles referred me to clause 31, 'Neighbourhood Amenity and Streetscape', to have regard to in assessment of the variation. In this regard in my assessment "the proposed development recognizes the desirable element of the location and the proposed development will contribute to the quality and identity of the area and harmonise sensitively with the heritage item and maintain a reasonable neighbourhood amenity". In terms of sub clause (c) the siting of the building in my assessment relates to the sites land form and I have considered the location of the building on the boundary and I am satisfied the impacts are not unreasonable having regard to the separation distances and the fall of the land and the purpose is achieved. 63 The variation to the 8 m standard should be allowed and I am satisfied the SEPP 1 objection is well founded. Two-Storey Height Standard 64 Clause 38(4)(b) contains the standard that: A building that it is adjacent to the boundary of the site must not be more than two storeys in height. 65 Mr Nash is of the view that the underlying purpose or primary purpose of the standard relates to the relationship of the scale of the proposed development to the streetscape and adjoining buildings fronting the Pacific Highway. Mr Ball considers that the underlying objectives of this standard are not limited to streetscape only but bulk and scale impacts to neighbours are inherent in the standard. 66 Despite the fact that there is a note under this standard in the Seniors Living SEPP that states, "the purpose of this paragraph is to avoid abrupt change in the scale of development in the streetscape" I agree with Mr Ball that it is not limited to streetscape but bulk and scale impacts to neighbours and impacts on adjoining land including overlooking and overshaodowing. 67 From the evidence I am satisfied that the amended proposal with an RL 199.25 for the new building will not impact on the Pacific Highway and when viewed from Gilda Avenue it may be visible between dwellings but to a limited extent. 68 With respect to bulk and scale impacts and overshadowing and overlooking on neighbours. The proposed building will be visible from the rear of the properties on the northern side of Gilda Avenue, however having regard to the topography and the level of the land at the rear of the Gilda Avenue properties in my assessment of all the evidence to the court the impacts are not unreasonable. Refer to Figure 5 for relevant sections. The variation to the two-storey standard should be allowed in the circumstances and strict compliance is unreasonable and necessary. I am satisfied that the objection is well founded One storey height for rear 25% of site 69 Clause 38(4)(c) of this State Policy has the standard: a building located in the rear 25% area of the site must not exceed one storey in height 70 Mr Ball states that "the underlying objective of this standard appears to be to prohibit higher developments at the rear of development sites to minimise bulk privacy and overshadowing impacts on adjoining land. The main question as to the relevance of this standard is whether this objective applies to all land adjoining the site or only to land of the subdivision pattern consistent with the configuration of a development site. However it is obvious that compliance with the one-storey standard that the rear of the site would least give significant relief to the overbearing height and link that the proposal." 71 Mr Nash is of the view that compliance with the single storey height standard for the rear 25% of the site is unreasonable and unnecessary in the circumstances the sites in the transition from the adjoining development to the north of six stories in height. Furthermore he states the proposed development at the rear has a physical separation between the buildings to the north 23 metres to the West 18metres and to the south at no 7 47metres… the non-compliance with the single storey height limit will not … impact on the amenity of existing dwellings.. only 5 and 7 Gilda Ave are adjoined at the rear 25% portion of the subject site and the dwellings are setback 47 to 49 metres from their rear boundaries. Given the physical separation between the proposed development and the dwellings there will be no adverse amenity impacts on these nominated dwellings arising from overlooking or overshadowing." 72 In my assessment of the variation to the single storey standard I accept Mr Nash's evidence and I conclude that in the circumstances strict compliance in this particular case is unreasonable and unnecessary. It can be seen from the planning scheme zone extract at figure 2 and the aerial photo at figure 1 that the subject site of over 5000 square metres does not reflect the subdivision pattern of the surrounding blocks that have frontage to Gilda Avenue. In the circumstances I am satisfied that the objection is well founded and should be allowed. 73 I accept the respondent's submission that an absence of environmental harm is not a reason to uphold a SEPP 1 objection. By the same token the degree or extent of variation does not dictate whether an objection should be allowed or not. SEPP 1 contains a number of provisions that must be considered in the assessment of objections for variations. I have also had regard to the authorities established in particular I refer to the judgement of the Chief Judge of this Court, his Honour Preston J., in Wehbe v Pittwater Council [2007] NSWLEC 827. 74 On the basis of the evidence to the Court I am satisfied that the SEPP 1 objections to vary the standards are well founded in the circumstances and the objections should be allowed. I must now consider the merits of the application as amended and in some respects this overlaps with the SEPP 1 assessment. 75 I understand that residents may not always embrace change, however the role of the Court is to assess whether the impacts from development are reasonable having regard to the circumstances of the case, the context, the suitability of the site for the development, the likely impacts of that development, and the statutory planning regime. 76 In my merits assessment the test is not whether there will be change but whether the change is satisfactory and does not create unreasonable impacts for adjoining properties in the context of the area and the statutory planning regime.

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Heritage 77 A joint heritage report was prepared by Mr Robertson for the Council and Mr McDonald for the applicant. They agree that 'Rosemorran' meets the criteria for the listing as a heritage item given its original external appearance and fabric and interior spaces that have been retained. They agree that the1990's addition on the western and southwestern parts of the original house are sympathetic but have less significance and there is greater scope for modification and intervention in this area. They also agree that the proposal, apart from some modifications to the first floor apartments, that an acceptable adaptive reuse of the building would be achieved in planning terms. 78 Mr Robertson expressed concern about the necessary intervention into the fabric of the building, to achieve BCA compliance, would be detrimental to the significance of the building. Further details and alternatives were discussed by the experts. 79 The more significant area of disagreement is that Mr Robertson considers the proposed development will have a detrimental impact on the significance of the house in its setting. He states that the house has always stood in its grounds as a discrete object surrounded by gardens and it has always had a physical relationship with and connection to the rear garden with a separate lower level at the rear providing a large service building that is now the subdivided lot that contains the two-storey dwelling on the battle axe allotment. 80 Mr Robertson states that the house is located on the ridge and despite the recent construction of the five storey Meriton apartments to the north the house still commands its site and is not dominated by adjoining development. It is described as: an aesthetically and historically significant example of a Federation Queen Anne style gentleman's residence constructed in 1897. The floor plan of the original house can still be interpreted and much of the original fabric of the original building has been retained… The gardens still demonstrate the early 20th century … which contains the requisite tennis court and lawn area in which accommodated the necessary re subdivision of the site required by the straightened economic circumstances of the 1920s. Additions have maintained the division of the rear garden into rooms in the front garden still demonstrates the layout of the original garden as evidenced in the 1943 aerial photograph. 81 Mr McDonald is of the opinion that The impact of the proposal on the curtilage taking into consideration the changes that had previously occurred in the vicinity on the site. The proposed new building is set on a modified part of the site and away from the rear 1990s portion of 'Rosemorran'. It steps down at its eastern end to a scale compatible with the scale of Rosemorran which is created by its two high storeys pitched roof forms and its elevation on the rear terrace. A height of the proposed new structure has been set so that it would be barely visible in the oblique view down the side of the house as seen from the Pacific highway, well below the site line to the Ridge and the profiles of the house. The retained front garden area and improved side garden area of the site provide a suitable setting for the house as it will be seen from the public domain…. The proposal would be an impact on the views from the rear bedrooms but these views have already been changed by the Meriton development. The views from the rear of Rosemorran at the ground floor level were largely eliminated by the Meriton development to the west and north. While the proposed development will alter the open setting substantial changes to the curtilage would occur with other forms of development that could take place on the site such as a further residential subdivision for large two-storey houses or attached dual occupancies. 82 In his evidence to the Court Mr Robertson states that the bulk and scale and use and relationship of the house to the open space at the rear breaks the nexus to the house and garden as a heritage item. He considers it is an unacceptable relationship and that Rosemorran will appear as subservient to the new building. On the other hand Mr McDonald considers the building is sufficiently removed and steps down in height and provides a satisfactory relationship to the heritage item. Furthermore he states that it is below the view line from the Pacific Highway although he agreed that the house currently has an open view over the garden but you can still see the Meriton buildings to the West that close the vista despite the tree line being observed over the Meriton buildings to the west. Mr McDonald considers that the primary aspect of the heritage item is to the front garden that will remain unchanged. 83 In respect of the amended plans Mr Robertson is of the view that the deletion of one floor and the reduction in which the floor immediately below does not change the impact of the proposed development on the heritage significance of Rosemorran. He further states that: "whilst there are solutions proposed to provide BCA compliance there will be loss of significance due to that intervention … these changes are inevitable and acceptable if there is to be a change of use. The crux of the matter is that changes to the fabric of the building are only required because of its change of use. Without a change of use the fabric of the building can be retained in its current excellent, near original condition"… The proposed revised scheme is detrimental to the maintenance of a heritage item as a heritage item as it destroys the significance of the item with respect to its total physical setting. The applicant has not made a case of necessity of the proposed form of development compared with a form of development contemplated by the zonings of the subject and surrounding sites." 84 In my assessment of the impact of the proposed development on the heritage item under clause 61D of the Ku-ring-ai Planning Scheme Ordinance and the SEPP. I am persuaded by the evidence of Mr McDonald that the proposed development will not significantly impact on the heritage significance of Rosemorran and its stylistic or horticultural features of its setting. In my assessment the adaptive reuse of this grand residence to be incorporated into a seniors living development is an appropriate use and the alteration of part of the fabric for BCA compliance would not warrant refusal. Furthermore I am satisfied that the conservatory and separation provided in the plans will not significantly impact the item on its setting.

[15]

Urban design 85 State environmental planning policy 65 requires design verification statement and this was submitted to address the 10 design principles. 86 On the principle of scale Mr Pedder is of the opinion that the planning regime that applies to the site implies a building scale with a residential form and the proposal is an inappropriate relationship without regard to a landscaped open space that is a key characteristic of the location. Mr Edgar on the other hand considers that in making allowance for the topography and the unusual limitations of the site with a heritage item and the necessity of maintaining the garden setting development that this was determined to be best located in a more concentrated footprint. The principle provides that good design is an appropriate scale in terms of the bulk and height that suits the scale of the street and the surrounding buildings. 87 The SEPP for density states that good design has a density appropriate for a site and its context, in terms of floor space yields and sustainable densities respond to the regional context, availability of infrastructure, public transport, community facilities and environmental quality. Mr Pedder is of the view that the existing density provided by the planning controls is to retain low-density for the site whereas Mr Edgar contends that the proposal is of similar density to that of the Meriton development to the north of the site and is appropriate in the transition zone. 88 For the principle of context it states that good design responds and contributes to its context. Context can be defined as the key natural and built features of an area and responding to context involves identifying the desirable elements of locations current character. Mr Pedder states that is the context justifies the proposal as a suitable location to seniors living because of its proximity to public transport and direct access to the Pacific Highway, major hospitals, and local retailing, entertainment and community facilities. Mr Pedder contends the assessment of seniors living was outside the scope of SEPP 65 and he has no comment on this issue. 89 The experts do not agree upon the transition between medium and low density development occurring at a finite line. Mr Pedder is of the view that the northern boundary provides an interface between the medium and low-density zones under the LEP whilst Mr Edgar asserts that the transition occurs across a zone. They agree that the setting will be changed by the proposal but disagree about the impact of the change. Mr Pedder contends that the relationship is negative by the juxtaposition of planting against a building whilst Mr Edgar contends that the overall canopy will not be significantly altered and the setting as viewed from the Gilda Avenue properties will still be dominated by the visible prominence of the Meriton development. 90 The experts also agree that the quantum of landscape and deep soil planting satisfies the statutory requirements however it is the distribution and location that they disagree on. They also agree that the maintenance of the garden setting of Rosemorran in respect of the Pacific Highway is an important element in any development proposal. 91 Mr Edgar says that the topography of the site provides the opportunity to cascade the proposed units away from Rosemorran and the sight line establishes the parameters to visual contain the building envelope. The site has a gradient that falls steeply to the west allowing a large proportion of the proposal including parking to the be below the ground floor level of Rosemorran also enabling a structure of up to three levels above ground floor to be kept below the sight line. Similarly the view from the south side of Gilda Avenue over the roofs of the houses at No.'s 3 and 5 conceals a building envelope of up to three storeys above the ground floor level of Rosemorran. To maintain continuity he has decided that the ground floors of Rosemorran and the proposed apartment development would coincide and that apartments below ground floor would be designated as terraced levels due to the access of the majority of them to garden terraces at the natural gradient of the site. 92 The principle of built form states that good design achieves an appropriate built form for a site and the buildings purpose. Mr Edgar says that the emerging future character of Wahroonga is development to be a higher-density than existing with different character and building types. Mr Pedder considers the built form is inconsistent with the current planning controls and the proposal increasing to five storeys as it descends down the hill with an interrupted length of 60m will result in unreasonable bulk and development out of scale with its neighbours particularly to the south. 93 The experts do not agree that views of the proposed development from Gilda Avenue will be concealed. They agree that there is sufficient separation between the proposal and block G of Lexington to achieve privacy objectives based on the requirements of the Residential Flat Design Code. 94 The experts Mr Pedder and Mr Edgar provided a further joint statement on the amended plans. Mr Pedder contends that the amended proposal will still result in an overdevelopment in terms of building form and massing and increased dwelling density. He considers that the overall form results in an unacceptable building mass and an unarticulated roof form. He also considers the book form does not respond to the topography but will result in a large flat building roofline of approximately 60 m in length. He also expressed concern about the connectivity of the communal open space. 95 Mr Edgar considers that the compaction of the proposed development is necessary in the context of the impacts and restrictions placed on the site by the development of the Meriton apartments along the northern boundary of the site causing overshadowing overlooking and a severe loss of privacy. He also considers that the visual amenity of adjoining properties will not be significantly impacted due to the distance separation, which is 22 m for the Meriton apartments. On the issue of articulation he said that the podium, ground floor and level 1 provides articulation. 96 I am persuaded by Mr Edgars evidence the proposal is satisfactory under the Urban Design SEPP. The question of context and the relationship of this site to adjoining properties must be considered in the principles above. While the building is long and narrow, in the circumstances of this case, the design solution responds to the constraints and opportunities of the site from an urban design perspective. Landscaping 97 At the beginning of the proceedings the respondent's landscape specialist raised a number of concerns many of which were subsequently addressed either through the amended plans, a change to the planting schedule and measures to protect trees on the subject site and adjoining properties and the right of carriageway to the north. 98 The experts agreed that with the amendments to the plans to provide a 3 metre setback on the southern boundary about five trees on the southern side of the proposed building could be retained including a Lilly Pilly and Queensland Fire Wheel tree. The Liquid Amber at some 8 metres was identified as one tree that could be retained, however I note the owner of the No. 3 Gilda Ave has requested for it to be removed. 99 Mr Bird, Council's expert, considers that: "even with a 3 metre set back (to the basement carpark) with increased soil volume there is still inadequate stepped back for tall canopy trees… certainly increased volume would allow now for small to medium-sized trees, so potentially trees between 8 to 10 metres could be accommodated. However in my statement earlier this is about the overshadowing in the area is still relevant… the soil volume certainly does increase the viability of the trees in this setback but the main contention is really that the overshadowing in this area even with the reduction of a storey is still maintained ". 100 Mr Bird considers that the Lilly Pillies would grow to about 5 to 6 metres on the southern side of the building whereas Mr Creer considered 6 to 8 metres and Mr Castor 10 metres. 101 It was submitted on behalf of the applicant that Mr Pedder put it correctly "it is important in this location to make sure that the building sits in a proper and appropriate landscape setting". In terms of the senior living controls there is a deep soil zone requirement of 15 per cent and it was submitted "the proposed development provides for over 39% and this building is now in a landscape setting". That is 2030 square metres and 39.7% of the site area is provided as deep soil zone. 102 I am satisfied with the planting regime agreed to between the experts that the proposed landscaping is satisfactory and the proposal will be seen in a landscaped setting consistent with the garden settings of the precinct. The conditions agreed to provide for tree protection measures, including hand excavation, for over 50 trees that are to be retained and with the supplementary planting the development will continue to make a contribution to this leafy residential area.

[16]

Impact on adjoining properties 103 I have carefully considered all the evidence to the court concerning the impacts of the proposal on adjoining properties. Together with the parties the Court had an extensive site inspection to understand the concerns of the residents. I deal first of all with the properties that have a common northern boundary with the subject site. In my merits assessment I have had regard not only to the direct impacts in terms of overshadowing and overlooking but also the issue of the bulk of the building and whether it will present as overwhelming or dominating when viewed from the rear gardens of Gilda Avenue. 104 The relative level of the proposed roof of the new building is 199.25 and the RL for 'Rosemorran' is 203.4. The RL for the 'Lexington' block on the Highway is at RL 207, and the ridge of Block G on the western boundary is 201.6. The dwelling house roof at No.3 Gilda has an RL 199.2. and the ridge of No.5 is RL 197.8. At Figure 5 the sections show the relationship of No's 3 and 5 and Lexington to the proposal. 105 I have assessed this development proposal under the Seniors Living SEPP 2004 and the Seniors Living Policy "Urban design guidelines for infill development". I accept the respondent's submission that this is not a transitional site but the merits of the application must be assessed and this includes impacts on adjoining properties and the context of the site. Similarly I must assess the amended plans before me and not a hypothetical development that may be permissible in the zone. This development application has been submitted under the provisions of the seniors living SEPP and my assessment must have regard to its provisions and guidelines including the context of the subject site and the impact of the proposed development on the residential amenity of adjoining properties. 106 I accept that the photomontages are only an aid and that I must have regard to the architectural plans and the relative levels to assess the proposed development. In my assessment having regard to the relative levels of the proposed units and those of the dwelling houses with frontage to Gilda Avenue and the separation distances, dwelling to dwelling, I am satisfied that the proposed building as shown in the amended plans will not have unreasonable and adverse impacts. This is not to say that the building will not be visible from the rear yards of the Gilda Avenue dwellings and the outlook over the subject site will change but in my assessment the proposal is one that will fit within a landscaped setting commensurate with adjoining properties. While I accept Mr bird's evidence that landscaping for this southern side of the building will be less vigorous in growth at the same time the evidence is that suitable landscaping can be achieved that will filter views to and from the building. 107 Concern was expressed by the residents about transferring the impacts of the Meriton developments to this site in terms of a domino effect. I agree with the submission on behalf of the respondent that just because an applicant may feel aggrieved by development on one boundary it is not appropriate or a justification to create unreasonable impacts for other land owners. 108 I understand that people may not always embrace change and development is often a delicate balancing exercise. Residents of No.'s 3, 5, and 7 Gilda Avenue currently enjoy extremely generous separation distances to the existing battleaxe dwelling set within extensive landscaped grounds on the subject land. The existing house on the battle axe lot is some 50 m from No. 3. The dwelling on No. 3 is set back between 30 to 37 metres from the rear boundary and 29 metres to 34metres to the verandah, according to the survey furnished to the Court at the end of the proceedings by the respondent. The swimming pool is shown on the survey as between 3.5 and 6.5 metres from the rear boundary with the pool coping 1 to 5 metres from the rear boundary. 109 The setback of the proposed building is 7 metres for the ground floor units and 9 metres to the upper level from the common boundary. The separation distance of the proposed building to the dwelling at No 3 Gilda Avenue is between some 35 to 43 metres. For No.'s 5 and 7 Gilda Avenue the separation distance is some 48 to 50 metres. 110 Addressing the issue of overshadowing at noon in mid winter for No. 3 the shadow impacts adjoining the northern boundary extend between 7 metres to 10.5 metres. For the worst case scenario, at 9 a.m., there is an area adjoining the dwelling that will continue to receive solar access extending some 22 metres from the rear of the house into the garden. For the dwelling at No.5 the overshadowing: midwinter at noon on the northern boundary into the rear garden is between 10.5 and 14 metres; and at 9 a.m. mid winter there is solar access extending 15 metres from the dwelling house into the rear garden. For the dwelling at No.7 the mid winter noon shadow extends over the tennis court on the eastern half between 5 and 11 .5 metres and at 9 a.m. midwinter some 13 metres of the rear garden receives solar access adjoining the dwelling. Figure 4 shows the mid-winter noon shadow on the rear gardens of properties No.'s 3, 5 and 7 Gilda Avenue . 111 It was agreed that there is no overshadowing impact created by the proposal for these properties at the equinoxes. 112 It was submitted for the Council that the amenity for the residents in the Meriton units is impacted by the proposed development although it was not submitted in terms of overshadowing and overlooking but the fact that the leafy green outlook over the subject site from the units is affected. 113 In my detailed assessment of the direct impacts of the proposed development in terms of overlooking privacy and overshadowing the proposed development does not create unreasonable impacts and is satisfactory on a merits assessment. I have also concluded after careful assessment that while the development will be visible from the rear gardens of the Gilda Avenue properties I am satisfied that the separation distances and the intervening landscaping to filter views of the building provides an acceptable outcome recognising the constraints and opportunities of the site. 114 With respect to the apartments in the Meriton developments I have carefully assessed the impacts and while there will be a loss of the vegetated outlook over the subject site at the same time I am satisfied that the residential amenity of these units is not unreasonably impacted by the proposed development. While there may not have been an expectation that the site would be developed at the same time the role of the Court is to assess the reasonableness of the impacts and whether the proposal will provide an appropriate relationship to surrounding developments. In this regard I have concluded that the impacts are reasonably contained within the site and that there are no privacy, overlooking or overshadowing impacts created and the apartments will continue to enjoy an outlook to many of the existing canopy trees within the set backs of the subject site and the proposed landscaping with the building set back some 22 metres to the blocks on the northern boundary and some 12 to 14 metres between the units on the western boundary. 115 I am satisfied with the amendments to the proposal and the fact one will see a building on the subject site that this in itself would not warrant refusal of the application. 116 From the aerial photograph at figure 1 and the numerous photographs provided to the proceedings it can be seen that not only the subject site but adjoining properties provide significant canopy tree cover and vegetation. However, in my assessment I do not rely on the trees and vegetation of the properties in Gilda Avenue to provide a continued buffer to the subject site but rather I am satisfied the landscaping within the subject site in the long term will provide appropriate screening and filtered views to the proposed building. 117 In my assessment with the benefit of the expert evidence to the Court the proposal will present as a building within a landscaped setting with the detailed attention to the appropriate selection of plant and tree species to supplement the retention of a number of existing trees on the site. I accept Mr Bird's evidence that the trees within the southern set back area by virtue of their location will not achieve the same height and growth and will be slower in particular in the establishment period. Nonetheless despite this constraint on the southern side of the building the landscaping to supplement the existing trees to be retained will provide for an appropriate landscaped setting. 118 In my overall assessment of the proposal under Seniors Living SEPP the proposed development satisfies the aims of the policy to increase the supply and diversity of residences that meets the needs of seniors, make efficient use of infrastructure and services and the proposed built form responds to the characteristics of the site. Conditions 119 On the basis of the evidence to the Court I have determined that a further deferred commencement condition is to be imposed to delete unit 1.03 at the south western corner of the building. The deletion of this unit will provide an appropriate relationship to adjoining properties when viewed from the rear gardens of the Gilda Avenue properties that share a common boundary with the proposed development and it provides for an appropriate relationship with the unit block at the rear of the subject site. I am satisfied that the relationship with the Lexington development to the north does not require the deletion of the upper unit on the north -west corner at the rear. The stepping down respects the change in topography on the southern elevation. 120 I am satisfied that the deferred commencement as drafted by the applicant does not represent uncertainty as to the final form of the development. I agree with the applicant that this plan amendment as discussed during the proceedings provides certainty as to the outcome and while it could be executed as an operational condition prior to the release of the construction certificate, greater certainty is achieved by a deferred commencement condition. An amended set of plans is already required in the deferred commencement to give effect to a reconfiguration of unit T1.03 to delete a bedroom and the south facing living room balcony to be re-located to the west. 121 The other Conditions are as generally agreed between the parties.

De Stoop v Ku-ring-gai Council

At a glance

Court

Decision date

Source

Judgment (20 paragraphs)

Parties

Cases Cited (3)

Cited By (4)