Jawad Pty Ltd v Ku-ring-gai Council

Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 LEGISLATION CITED: Threatened Species Conservation Act 1995 State Environmental Planning Policy 53 - Metropolitan Residential Development Ku-ring-gai Planning Scheme Ordinance

The Benevolent Society v Waverley Council [2010] NSWLEC 1082 CASES CITED: Broockmann v Ku-ring-gai Council [2008] NSWLEC 1236 Krslovic Homes Pty Ltd v Ku-ring-gai Council [2005] NSWLEC 192

DATES OF HEARING: 12/05/2010 02/08/2010

APPLICANT Mr S Kondilios - soilicitor Maddocks LEGAL REPRESENTATIVES:

RESPONDENT Ms L Finn - soilicitor HWL Ebsworth

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10100-10103 of 2010 Jawad Pty Ltd v Ku-ring-gai Council

JUDGMENT 1 COMMISSIONER: These are four separate but related appeals made under s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against a refusal by Ku-ring-gai Council (the council) to approve a staged construction of 2 dual occupancy developments and Torrens Title subdivision at 7 Fairway Avenue Pymble.

The overall proposal 2 The proposed four-stage development is as follows: Stage 1 - DA0626/09 - Appeal No. 10101 of 2010 Demolition of an existing dwelling and the construction of an attached dual occupancy (dwellings 1 and 2). Dwellings 1 and 2 are to be located at the rear or eastern end of the site and will include the area occupied by the exiting dwelling. Stage 2 - DA0627/09 - Appeal No. 10102 of 2010 Torrens title subdivision of the dual occupancy proposed in DA0626/09 Stage 3 - DA0628/09 - Appeal No. 10103 of 2010 Construction of two additional dwellings (dwellings 3 and 4) to form dual occupancies with the dwellings proposed in DA0696/09. Dwellings 3 and 4 are to be located to the front or western portion of the site in what is currently landscaped front garden. Stage 4 - DA0629/09 - Appeal No. 10100 of 2010 Torrens title subdivision of the dual occupancy proposed in DA0628/09 3 Vehicle access is by the existing driveway that is generally centrally located on the site. The issues 4 The primary reasons for council's refusal of the proposed development are summarised as: - Adverse streetscape and visual impacts due to the bulk of the development, - Inadequate rear and front setbacks, - The proposed areas of private open space provide poor residential amenity, - Excessive earthworks resulting in adverse and unacceptable impacts on trees to be retained, - Adverse heritage impacts, - Unsatisfactory architectural and landscape plans, - Impermissibility of elements of the proposed development, and - Fencing.

5 Should the development be approved, the parties agreed that fencing issues could be resolved by imposing conditions on the height and style of boundary and internal courtyard fences.

The site and locality 6 The site is Lot B DP 357648. It is located on the eastern and higher side of Fairway Avenue Pymble. It is irregular in shape with a frontage of 24.175m and an average depth of 56.97m and a total area of 1848m2. There is a fall of some 7.87m from its north-eastern corner to the south-western corner. 7 Development on the site currently comprises a single occupancy dwelling set back over 30m from the front boundary and about 8 m from the rear (eastern) boundary of the property. The eaves of the existing dwelling are approximately 2m from the southern boundary and 11m from the northern boundary. 8 The site has been identified by council's ecological officer as containing Blue Gum High Forest (BGHF), listed as a critically endangered ecological community in Part 2 of Schedule 1A of the Threatened Species Conservation Act 1995 (TSC Act). 9 The site is surrounded by residential development. The adjoining properties to the north and south are part single, part two storey dwellings. 10 The adjoining property to the east is a heritage item known as 132 Mona Vale Road listed in the Ku-ring-gai Planning Scheme Ordinance (KPSO). The site is also in close proximity to two other heritage items at 136 and 142 Mona Vale Road. Planning controls 11 The site is zoned Residential 2(c) under clause 23 of the KPSO. Demolition of a building and development for the purposes of dwelling houses is permitted in this zone with development consent, including attached and detached dual occupancies. 12 State Environmental Planning Policy 53 - Metropolitan Residential Development (SEPP 53) is the principal planning instrument and applies to this part of Ku-ring-gai local government area (LGA). The aims are in s 3 and state: (3) Aims (1) This Policy aims to encourage the provision of housing in metropolitan areas that will: (a) broaden the choice of building types and locations available in the housing market, and (b) make more efficient use of existing infrastructure and services, and (c) reduce the consumption of land for housing and associated urban development on the urban fringe, and (d) be of good design. (2) These aims are to be achieved: [relevant to this matter] (a) by establishing planning controls that will provide opportunities for a variety of housing types…to be developed in areas the councils of which have not adopted residential development strategies approved by the Minister, and (b) by setting out design principles that, if followed, will achieve built form that responds to the characteristics of its site and location,

Ku-ring-gai LGA is the only LGA listed in Schedule 1 of the SEPP to which the SEPP applies.

13 SEPP 53 Part 3 applies to dual occupancy. The objectives of this Part are in cl 15 and are as follows: 15 Objectives The objectives of this Part are: (a) to create opportunities for two dwellings to be developed on a single allotment of land, and (b) through the other provisions of this Policy, to ensure that dual occupancy development is: (i) designed and assessed with a full understanding of the opportunities and constraints of each site, and (ii) designed and assessed having regard for the design principles contained in Part 5. 14 The relevant numerical standards of SEPP 53 require a minimum allotment size of 400m2 where two dwellings are attached and a minimum of 600m2 for detached dwellings; a maximum floor space ratio of 0.5:1 and provision for two car spaces for each dwelling with a gross floor area of more than 150m2.

15 Design requirements are set out in Part 5 of SEPP 53. Clause 32 lists the design principles to be addressed. The relevant principles in this matter are (a) Streetscape,(b) Visual and acoustic privacy, (c) Solar access and design for climate, and (h) Visual Bulk.

16 The Ku-ring-gai Dual Occupancy - Development Control Code (the Code) is an adopted policy of Council that aims to provide guidelines to achieve a good design outcome for dual occupancy development in accordance with SEPP 53. The Code recognises that if there is an inconsistency, the provisions of SEPP 53 prevail. The evidence 17 The hearing commenced as a conciliation conference in accordance with s 34 of the Land and Environment Court Act 1979 (the Court Act). The conciliation conference was terminated and the parties agreed to me hearing and disposing of the matter at a later date in accordance with s 34(4)(b) of the Court Act. 18 When the matter was resumed, it was agreed between the parties that the experts' reports be relied upon and that no cross-examination of the experts was required. Planning issues 19 Planning reports for each appeal were prepared by Mr Glendinning for the applicant and Mr Sanders for the council. The planners also prepared a joint report.

20 The planners agree that stages 1 and 3 of the proposal comply with the numerical standards of SEPP 53 with respect to allotment size, floor space ratio and carparking. However, the planners disagree as to the streetscape and visual bulk impacts, setbacks, the amenity of the areas of private open space and the extent of earthworks. The earthworks go to the impact on trees and are addressed in the section of the judgment concerning arboricultural issues. Therefore the key question before the Court is whether the applications meet the qualitative requirements of SEPP 53.

21 The planners agree that if stages 1 and 3 are approved, stages 2 and 4, that is, the Torrens Title sub-division of the relevant dual occupancies, are permissible.

22 Stage 1 proposes the construction of an attached dual occupancy - dwellings 1 and 2, at the rear or eastern portion of the site. The western façade is 2 storey with two double garage towards the centre of the lower level of the building. The rear of the building reads as single storey.

23 Stage 3 involves the construction of two detached 2 storey dwellings on the western / Fairway Avenue portion of the site. Streetscape - evidence 24 Mr Sanders states that a key feature of the existing streetscape character in the vicinity of the site is primarily composed of single occupancy dwellings in generous landscaped settings. He notes that that there are medium density developments at the southern and northern ends of Fairway Avenue but contends that these address Mona Vale Road and Pentecost Avenue. He considers that stage 1 must be considered in combination with the dwellings proposed in stage 3. He states that the combined development will result in an overdevelopment of the site that is inconsistent with the existing streetscape character.

25 Mr Sanders considers that the size of the proposed stage 1 construction of an attached 2 storey dual occupancy (dwellings 1 and 2) at the rear of the site prejudices the location of dwellings 3 and 4 (stage 2), which he considers are inadequately set back from the street. He considers that the combination of building length (28.3 m), a lack of horizontal articulation and a large roof form create excessive bulk that will result in an adverse impact on the streetscape. He notes that, notwithstanding the relative applicability of the Code, the design requirements and controls in section 4.9.2 of the Code state that buildings should not exceed 24 m in length. 26 Dwellings 3 and 4 are 2-storey dwellings at the western or Fairway Avenue portion of the site. The site is on the high side of Fairway Avenue. Mr Sanders considers that the dwellings are of bulky design with little vertical articulation. He states that the bulk of these dwelling are inconsistent with the adjoining properties which are well articulated. 27 At their closest, dwelling 3 is setback 10.4m from the street frontage and dwelling 4 is setback 6.7m. Mr Sanders considers that these setbacks are inconsistent with the established setbacks along the eastern side of Fairway Avenue. He states that the setbacks on this side of the street range from 27m at the northern end to 5m at the southern end and correspond with a decrease in lot size from north to south. He considers that in order to maintain the existing streetscape, any development on the site should form an appropriate transition between the setback of No. 9 Fairway Avenue (27m) and No. 5 Fairway Avenue (16m). As a guide, the minimum setback in the Code is 12m for dual occupancies on the high side of a street.

28 He states that, in the light of these issues, the proposal does not comply with cl 32(a)(i) of SEPP 53 that requires development to contribute to an attractive residential environment with clear character and identity. He also considers that the proposal does not comply with cl 32(h) regarding visual bulk, in that it does not maintain reasonable neighbour amenity and appropriate residential character. 29 Mr Glendinning considers that stages 1 and 3 comply with the numerical development standards in SEPP 53 and that nearby developments approved under SEPP - Housing for Seniors or Persons with a Disability and SEPP 53 are evidence that the area is not primarily comprised of single occupancy dwellings. 30 Mr Glendinning relies on the findings in Broockmann v Ku-ring-gai Council [2008] NSWLEC 1236 where Roseth SC states at para 21 21 A complete reading of SEPP 53 makes it clear that, if the Policy required the continuation of the existing character, no dual occupancy development could be approved under it. The basic concept of dual occupancy is that there will be two houses on allotments where there is now only one. ….. An area with two houses on an allotment has a different character to an area with only one house. When read in the context of the whole Policy, cl 32(a)(i) should be understood to say that the attractive elements in an area's character should not be destroyed, not that the character must remain frozen in time. Change is an inevitable consequence of applying the Policy.

31 He contends that the attractive elements in the streetscape are retained and enhanced in the proposal through the use of the existing driveway, the retention of trees and the retention and refurbishment of the vegetation along the front boundary. 32 Mr Glendinning considers the Code and its design requirements and controls to be superseded by SEPP 53 and therefore considers the Code to be irrelevant. He contends that the length of the attached dual occupancy (dwellings 1 and 2) is acceptable given its setback from the street and the fact that it will be screened by dwellings 3 and 4. 33 He considers the setbacks of dwellings 3 and 4 to be adequate having regard to the fact that the proposal is for medium density housing and that some variations to council's Code are to be expected if the objectives of SEPP 53 are to be achieved.

34 In terms of visual bulk and impacts on the streetscape, Mr Glendinning considers that all the dwellings are well articulated, provide adequate setbacks, step down the site to minimise bulk and scale from the neighbouring properties, and are well-screened by a heavily vegetated frontage that will be enhanced with additional plantings. As such, he concludes that the proposal satisfies cl 32(a)(i) of SEPP 53 in that the proposal will result in a clear character and identity that will have an acceptable visual outcome when assessed against the context of the development and the surrounding development. Findings - Streetscape 35 SEPP 53 contains very few development standards or controls, rather, in Part 5 - Design Requirements, cl 27 Objective states: 27 Objective The objective of this Part is to establish a process and criteria that encourages good design in residential development that may be used in the design and assessment of development allowed by this Policy.

Further, at cl 32 - Design of residential development Consent must not be granted to development to which this Part applies unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the following principles: (a) Streetscape The proposed development should: (i) contribute to an attractive residential environment with clear character and identity, …

36 The plans of the attached dual occupancy show limited articulation of the eastern and western elevations. Notwithstanding the vegetation on the site, drawing no. DA. 304 'Stage 3 - Site & Elevations - Sheet 1' shows that the attached dual occupancy will be visible from the street frontage. Apart from the large roof form, the view from the street will be of an expanse of garage. The overall height is lower than the exiting dwelling however, the length and bulk is substantially greater. It is also noted that the current dwelling is well screened from Fairway Avenue by the extensive garden in the mid section of the property. The proposed development inevitably removes a substantial area of landscaping. 37 Dwellings 3 and 4 at their closest setbacks from the street are well forward of the neighbouring dwellings. In this regard, I agree with Mr Sanders in that there should be a transition between the setbacks of the neighbouring properties. I consider, in this instance, absent any specific development standards in SEPP 53, that the 12m setback in the Code would achieve the streetscape character anticipated by SEPP 53 and the Code. I consider dwelling 3 to be within tolerable limits however, dwelling 4 is unacceptably close to Fairway Avenue and its setback is a substantial departure from the neighbouring properties in this section of Fairway Avenue. 38 In addition to the marginal to unacceptable setbacks, dwellings 3 and 4 are two storey at the street frontage and have minimal articulation. In my view, the design does not contribute to an attractive residential environment. Regardless of the existing well-vegetated front garden bed, the height and setbacks of dwellings 3 and 4 will make them very visible from the streetscape. They are likely to be seen through the landscaping. Landscaping cannot be relied upon in the long term to mitigate the visual impacts of a development. The built form must stand on its own. 39 Dwellings 3 and 4 are a mirror image of the same form and materials. The attached dual occupancy also has a similar form. Therefore the visual impact will be of uniformity rather than diversity of form, the latter being the existing character of the streetscape.

40 Despite the retention of existing trees and the planting of additional trees, the size and bulk of the proposed dwellings are such that the site will be dominated by the built form. As a result of the forgoing, I am not satisfied that the proposal contributes to the clear character and identity of the streetscape and therefore the design requirements in cl 32(a)(i) of SEPP 53.

41 I agree with Senior Commissioner Roseth that a dual occupancy development will alter the character of an area and that the KPSO and SEPP 53 permit dual occupancies in this part of Ku-ring-gai LGA. However, the matter before the Court is not a simple dual occupancy as discussed in Broockmann but effectively four dwellings on one site. Whilst the proposed development meets most of the stated aims of SEPP 53 and there are elements of compliance with the Code, I do not consider that the overall design achieves a built form that responds to the characteristics of its site and location and therefore the aims of SEPP 53 in s 3(1)(d) and 3(2)(b). Setbacks- landscaping, adverse visual bulk- evidence 42 The council contentions regarding setbacks essentially go to the adequacy of space for landscape planting, impacts of visual bulk and resulting adverse impacts on adjoining neighbours and the streetscape. 43 This judgment has addressed the front setbacks. The following sections consider rear and side setbacks. 44 Mr Sanders considers the rear setback of the attached dual occupancy (dwellings 1 and 2) of a minimum of 3.9m to be inadequate for sustainable tree replenishment. He states that the Code suggests a minimum rear setback of 15% of the average site depth, in this case 8.5m. 45 Mr Glendinning contends that the landscape plans show sufficient numbers of plants in the rear areas of open space and that the rear setback complies with the minimum dimension prescribed by AMCORD [A National Resource Document for Residential Development] of 4.0m and is therefore adequate.

46 In Mr Sanders' opinion, the side setbacks of dwellings 3 and 4 at 1.58m to the north and south are inadequate and result in excessive bulk impacts to the streetscape and adjoining properties as well as providing inadequate space for landscaping to soften the impact. He contends that the visual bulk is exacerbated by the lack of vertical articulation of the dwellings. 47 Mr Glendinning states that the setbacks allow for appropriate screen planting as shown in the landscape plans. He considers that the new plantings will supplement existing screen plantings that are to be retained. This, he says, will contribute to the streetscape and adjoining properties as well as provide privacy and screening to the open space and dwellings of the proposed development.

Findings - Setbacks - landscaping and visual bulk 48 The relevant design principles set out in cl 32 SEPP 53 are those relating to visual and acoustic privacy and visual bulk. The relevant subclauses state: (b) Visual and acoustic privacy The proposed development should, where practicable, consider the visual and acoustic privacy of neighbours in the vicinity and residents by: (i) appropriate site planning, the location and design of windows and balconies, the use of screening devices and landscaping, and… (h) Visual Bulk The proposed development should, where practicable, maintain reasonable neighbour amenity and appropriate residential character by:

(a) providing building setbacks that progressively increase as wall heights increase to reduce bulk and overshadowing, and (b) using building form and siting that relates to the site's land form, and (c) adopting building heights at street frontage that are compatible in scale with adjacent development, …

49 With respect to the rear setback of dwellings 1 and 2, the issues are more to do with the amenity of the private open space and are dealt with later in this judgment. 50 The practical effect of the length of dwellings 1 and 2 is the impact on side setbacks. The width of the site is approximately 32.2 m for all parts of the site proposed to be used for the construction of the 4 dwellings, apart from the western extremity of dwelling 3. Measurements taken off the submitted plans show the setbacks from the outside of the walls to the boundary fences with both 5 and 9 Fairway Drive (southern and northern sides respectively) to be 1.8 m to 2.5m, and from side steps/paved area to the fence - approximately 1.15m. The setback of the eaves ranges from 1.3m to 2m from the northern and southern boundaries. 51 The configuration of dwelling 2 provides for a planting bed of only 400mm off the kitchen on the southern side. The setback off the building at this point is less than 1.8 m from the boundary fence with No 5 Fairway Avenue. The southern elevation for dwelling 2 shows the stairs from the kitchen to be 1.5m above exiting ground level. Therefore, the provision of landscape space appears inadequate to support plants that would provide adequate screening between dwelling 2 and 5 Fairway Avenue. This, in my view, does not achieve the desired outcome in SEPP 53 32(b) of ensuring visual privacy.

52 As Mr Sanders states, the side setback for dwellings 3 and 4 is 1.58m. The setback from the eaves of these dwellings is approximately 1.1m from the northern and southern boundaries. Paved areas of private open space on the northern side of dwelling 3 and the southern side of dwelling 4 are set back 1 m from the boundary fences with the adjoining properties. 53 I agree with Mr Sanders that, with respect to dwellings 3 and 4, the limited side setbacks combined with the height of the dwellings and the lack of vertical articulation are of excessive visual bulk and do not maintain reasonable neighbour amenity and appropriate residential character as specified in SEPP 53 cl 32(h). 54 The limited side setbacks also constrain the ability of any landscaping to mitigate the unacceptable visual impact. However I concur with Tuor C at para 39 in Krslovic Homes Pty Ltd v Ku-ring-gai Council [2005] NSWLEC 192 where she states: 39 Senior Commissioner Roseth in Super Studio v Waverley Council [2004] NSWLEC 91 enunciated the principle that where proposed landscaping is the main safeguard against overlooking it should be given minor weight. This principle can also be expanded to landscaping and its use to screen or mitigate bulk impacts of a proposal. The built form should be acceptable without landscaping. This will be achieved by factors such as the size and separation of development in relation to other buildings. The space around buildings is then something that can be landscaped to soften the development but the space is the important factor, not the landscaping.

55 In these matters, while landscaping is of importance to help in the provision of privacy and environmental benefits and to maintain the attractive elements in the streetscape, the size, number and limited setbacks of the dwellings proposed for the site limit the space around and between the buildings on the site and neighbouring properties to the point where landscaping is expected to do too much. Private open space, solar access and residential amenity - evidence 56 One of the council's main concerns is that the proposed areas of private open space are inadequate and what is provided for, receives inadequate solar access in mid-winter and therefore offers poor residential amenity. The council considers that the proposal does not comply with cl 32(c) of SEPP 53 that states in part "ensure adequate sunlight to substantial areas of private open space". 57 Mr Glendinning's statement of evidence includes shadow diagrams for the entire site (including fences) shown at hourly intervals from 9.00 am until 3.00 pm on 22 June. He concludes that a substantial area of private open space for dwellings 1 and 2 have at least 2.5 hours of mid winter sunlight. He states that this complies with the AMCORD standard of 2 hours but is below the accepted standard of 3 hours in NSW. He accepts that the sunlight will be filtered due to the existing surrounding vegetation (that is, the large trees growing at the rear of 132 Mona Vale Road).

58 In part, Mr Glendinning relies on the revised and consolidated planning principle in The Benevolent Society v Waverley Council [2010] NSWLEC 1082. The relevant dot points from para 144 are: For private open space to be assessed as receiving adequate sunlight, regard should be had of the size of the open space and the amount of it receiving sunlight. Self-evidently, the smaller the open space, the greater the proportion of it requiring sunlight for it to have adequate solar amenity. A useable strip adjoining the living area in sunlight usually provides better solar amenity, depending on the size of the space. The amount of sunlight on private open space should ordinarily be measured at ground level but regard should be had to the size of the space, as, in a smaller private open space, sunlight falling on seated residents may be adequate. Overshadowing by fences, roof overhangs and changes in level should be taken into consideration. Overshadowing by vegetation should be ignored, except that vegetation may be taken into account in a qualitative way, in particular dense hedges that appear like a solid fence. 59 Mr Glendinning concludes that the amount of sunlight reaching the rear courtyards of dwellings 1 and 2 is acceptable. 60 Mr Sanders considers that the nature and density of this vegetation is such that it should be taken into consideration, in a qualitative way, when assessing the amount of sunlight to dwellings 1 and 2. 61 Mr Sanders considers that the areas of rear open space for all dwellings are insufficient and, as such, provide for poor residential amenity. In particular, he is concerned that the rear open space associated with dwelling 4 would only receive sunlight in the middle of the day in mid-winter. He states that, in addition, the amenity of the rear private open space for dwelling 4 is compromised in that it is overlooked from the elevated entry stairs and landing of dwelling 2. He further contends that the patio area of dwelling 4 is set back 3m from the elevated steps of dwelling 2. 62 Mr Glendinning states that the rear open space areas for dwellings 3 and 4 are 57.7m2 and both have over 100m2 of open space. These he considers to be adequate, usable and exceed the AMCORD and NSW Housing Code standards. He contends that the shadow diagrams show compliance with cl 32(c) of SEPP 53.

Findings - Private open space, solar access, residential amenity. 63 Clause 32(c) of SEPP 53 provides: (c) Solar access and design for climate The proposed development should, where possible: (i) 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, …

64 With respect to dwellings 1 and 2, the majority of the private open space for these dwellings is to the rear. Due to an angled boundary the setback from the eastern boundary fence ranges from about 2.8m at the northern end and 5.8m at the southern end. This provides about 76m2 and 73.6m2 of open space for dwellings 1 and 2 respectively. There are small elements of open space elsewhere however, it is considered that most useful and useable private open space is that which forms an extension from the living areas of a dwelling. 65 I do not dispute the figures from Mr Glendinning regarding the amount of sunlight reaching the rear of these dwellings given in para 57 of this judgment. However I note that in the joint planning report Mr Glendinning states that a reasonable area of the rear courtyards of these dwellings will receive 3 hours of sunlight. He also accepts that the amount of light will be filtered early in the day due to the large canopy trees at the rear of the adjoining heritage-listed property. 66 I consider that the size and proximity of the trees on the adjoining property are such that they will have a qualitative effect on the amount of sunlight reaching the rear courtyards and associated decks. The landscape plans show the rear boundary fence to be densely planted with shrubs, that appear to be planted so as to form a hedge, that will reach a height of 2.5 to 3m. The landscaping is a very desirable element but it is likely to have an additional qualitative impact on the sunlight reaching the rear of the dwellings and the associated open space. It should not be assumed from this that landscaping should be reduced or deleted from this area.

67 I consider that the inadequacy of the rear setback compromises both the amount of private open space and therefore the amount of sunlight that could reasonably be expected to be enjoyed. Given the qualitative effect of the significant adjoining vegetation and the, at best, marginal compliance with requirements for mid-winter solar access, I do not consider that the proposal before the Court ensures adequate sunlight to substantial areas of open space for dwellings 1 and 2 as required by cl 32(c) of SEPP 53. 68 With respect to dwellings 3 and 4, the area of rear open space for these dwellings is small. The shadow diagrams provided in Mr Glendinning's report show that for only 2 hours in mid winter do those areas receive sunlight to more than 50% of the area. Dwelling 4 is the most compromised. 69 The shadow diagrams do show more than 3 hours of sunlight to the front gardens of these dwellings. Mr Glendinning states that the front areas of private open space are accessible from ground floor rumpus rooms in both dwellings. While this may be so, these areas are not readily accessible from the main living areas and are also at the street frontage where there is to be no front fence. The front gardens of both these dwellings are areas in which significant trees are to be retained and replacement trees are to be planted. Whilst not diminishing the importance of landscape and of tree canopy to the character of the streetscape, there will be qualitative impacts on solar access. The hours of solar access to these areas should not be relied on to compensate for the insufficient solar access to the rear courtyards. Therefore for dwellings 3 and 4, I am not persuaded that the proposal complies with required by cl 32(c) of SEPP 53. 70 With respect to the rear courtyard of dwelling 4, I concur with Mr Sanders. I consider the proximity and relative height of the entrance to dwelling 2 to the rear open space of dwelling 4 does not provide adequate privacy. As such, there is no compliance with cl 32(b)(i) of SEPP 53 with respect to this element of the proposal.

Arboricultural issues 71 The council's Statements of Facts and Contentions list a number of trees they consider would be adversely affected by the excavation for and construction of stages 1 and 3 of the proposed development. 72 The arborists agreed that tree 4, a Eucalyptus saligna (Sydney Blue Gum) of low to moderate amenity will need to be removed to facilitate the construction of the driveway. The arborists consider the tree to be of low to moderate landscape significance and its loss is acceptable notwithstanding it is a component species of BGHF. In further consultations it was agreed that this tree should be replaced by 3 trees - one each of Eucalyptus saligna, Syncarpia glomulifera (Turpentine) and Angophora costata. The location of these trees is shown on the appropriately amended Landscape Plan. 73 There was some discussion of tree 24, a mature and healthy Juniperus chinensis (Variegated Chinese Juniper) located on the southern corner of the existing driveway and part of a dense planting of trees and shrubs that provides a visual screen from the street. The council is concerned that the earthworks associated with the construction of the new driveway will have an unacceptable impact on the tree. It was resolved that the existing wall alignment will be retained allowing a 3m offset from the tree and thus minimising any risk of damage associated with the development. 74 Of concern to the council, and raised in their contentions, is the potential impact of stage 1 of the development on a large Eucalyptus pilularis (Blackbutt) and a Celtis sinensis (Chinese Hackberry) growing at the rear of the heritage-listed property at 132 Mona Vale Road. The concern is that impacts on the trees may affect views from the heritage item and its garden setting. Concerns were also raised that clearing of the canopies of these trees may be required in order to comply with Rural Fire Service (RFS) requirements. The arborists determined that the risk to these is low and within an acceptable threshold for the trees. No pruning is required for RFS requirements. 75 Of the eight trees identified in the council's statement of facts and contentions, the only tree the arborists consider may have a moderate to high level of impact is tree 20, a Harpephyllum caffrum (Kaffir Plum). This tree is of moderate landscape significance located in the south-western portion of the site. Should the development be approved, the tree will be located in the front garden of dwelling 4. Findings 76 In general, there are few arboricultural grounds on which these appeals could be dismissed. There is agreement between the arborists that, apart from tree 20, the potential impacts of the proposal on the trees to be retained are within acceptable limits. It is noted that the conclusions of the arborists are based on the following assumptions: A 300mm over-excavation for the construction and waterproofing of dwellings 3 and 4 The stormwater pipes on the northern side of dwelling number 3 and the southern side of dwelling 4 will be relocated to run from the downpipe, under the building to the stormwater line running under the driveway access to the site to avoid the need for additional excavation in the tree protection zones of tree numbers 5, 15 and 16. 77 Whilst the arborists agree that the impacts of the proposal are manageable, there is no assessment of the impacts of the proposed landscaping on the trees to be retained as this was not raised by the council in its contentions. I consider this to be a relevant consideration given the importance of maintaining the integrity of the canopy and its contribution to the character of the streetscape. 78 Should any future development be approved for this site, conditions of consent should reflect the construction details and location of stormwater lines as described above. A detailed tree protection plan or detailed conditions, in accordance with AS4970 - Protection of trees on development sites, should be prepared to protect any trees to be retained. Heritage issues 79 As a consequence of the arboricultural evidence, the proposed development is unlikely to have any material impact on the horticultural features and setting of the heritage item at 132 Mona Vale Road. However, increasing the setback from the eastern boundary will further reduce the impacts on the significant trees at the rear of the heritage item.

Findings 80 There are no heritage reasons for the refusal of these appeals.

Ecological issues 81 In the applicant's Statement of Facts and Contentions in reply, the applicant agrees that the site contains BGHF but records the council's assessment report for DA0626/09 dated 11 December 2009 that states: The applicant has submitted a seven part test in accordance with section 5A of the Environmental Planning and Assessment Act. Council's ecology officer has reviewed the seven part test and has raised no concerns with the proposed development.

82 Notwithstanding this assessment, the council's contentions raise concern over the impact of the proposed earthworks on species of trees that characterise BGHF. 83 A statement of evidence (SOE) was prepared by Mr M Couston, author of the Flora and Fauna Assessment referred to by the council as the 'seven part test'. The SOE states that the long-term negative impacts will be the loss of 231m2 of landscaped areas, the removal of one Angophora floribunda (Rough-barked Apple and a BGHF species) (tree 17) and one E. saligna (Sydney Blue Gum) (tree 4). 84 In countering the loss of these trees, the direct long-term positive impacts include the retention of a E. paniculata (Grey Ironbark) (tree 3), the planting of 9 additional locally indigenous tree species, and the removal of all noxious and environmental weeds from the site. 85 The SOE concludes: Based upon the vegetation and habitats on the site and the scope of the proposed development, it is considered that the proposed development will not have a significant impact on threatened species and in particular the critically endangered Blue Gum High Forest ecological community.

Findings 86 There are no ecological reasons for the refusal of these appeals. Any conditions of consent for future development must incorporate the replacement and management to establishment of the additional trees and the removal of all noxious and environmental weeds from the site. 87 There is an error in the planting schedule. The Rapanea species found in BGHF is Rapanea variabilis (Muttonwood). Elderberry Panax is Polyscias sambucifolia subsp. A. These species should be clarified in any future landscape plans.

Conclusions 88 While I recognise that the site is suitable for dual occupancy development and while there is numerical compliance with the few development standards prescribed in SEPP 53, I am not satisfied that the proposed development demonstrates that adequate regard has been given to a number of critical design principles given in cl 32 of SEPP 53 and as a result the proposal does not achieve the aim of cl 3(1)(d) to be of "good design". As a result of this, the appeals must fail.

89 Notwithstanding the manageable arboricultural, heritage and ecological issues, the planning issues are substantial. I consider that, in its current form, the proposal is an overdevelopment of the site that does not respond to the characteristics of the site and its location. In particular, the length, bulk and limited articulation of stage 1 is excessive, the setbacks of all dwellings from all boundaries are insufficient, the height and lack of articulation of dwellings 3 and 4 presents an excessively bulky visual impact from the street, and the restricted areas of private open space and intrusions into the spaces between buildings will not facilitate an acceptable degree of amenity for the future residents. I consider dwelling 4 to be the most unacceptable element of the proposal. 90 As development consent to stages 1 and 3 cannot be granted, the appeals regarding Torrens Title subdivision of the proposed lots must also fail.

Orders 1. For Appeal No. 10101 of 2010, the Orders of the Court are: 1. The appeal is dismissed. 2. Development application DA0626/09 for the demolition of an existing dwelling and the construction of an attached dual occupancy (dwellings 1 and 2) at 7 Fairway Avenue Pymble (Lot B DP 357648) is determined by refusal. 3. The exhibits are returned. 2. For Appeal No. 10102 of 2010, the Orders of the Court are: 1. The appeal is dismissed. 2. Development application DA0627/09 for Torrens title subdivision of the dual occupancy proposed in DA0626/09 is determined by refusal. 3. The exhibits are returned. 3. For Appeal No. 10103 of 2010, the Orders of the Court are: 1. The appeal is dismissed. 2. Development application DA0628/09 for the construction of two additional dwellings (dwellings 3 and 4) to form dual occupancies with the dwellings proposed in DA0696/09 is determined by refusal. 3. The exhibits are returned. 4. For Appeal No. 10100 of 2010, the Orders of the Court are: 1. The appeal is dismissed. 2. Development application DA0629/09 for the Torrens title subdivision of the dual occupancy proposed in DA0628/09 is determined by refusal. 3. The exhibits are returned.

Judy Fakes Commissioner of the Court

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