Jennifer Game v Ku-ring-gai Council

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11106 of 2003 11107 of 2003, 11108 of 2003 and 11109 of 2003

Jennifer Game Applicant v

Ku-ring-gai Municipal Council Respondent

1 . This is an ex tempore judgment in respect of an appeal against Ku-ring-gai Council's refusal of a number of development applications for the properties known as 2A and 2B Peace Avenue, Pymble. It is proposed that the development be carried out in stages, not in terms of stages of the Environmental Planning and Assessment Act but rather that there are a number of development applications whereby certain applications have to be carried out prior to other applications being acted upon.

2 . There are four development applications before the Court that represent four stages. Firstly the consolidation of the two existing allotments into one; the demolition of existing structures; the construction of a detached dual and construction of a swimming pool; and an attached dual occupancy.

3 . Development Application 47603 is the dual occupancy Torrens Title subdivision. DA47803 is construction of a dwelling as an attached dual occupancy. DA47703 is the dual occupancy Torrens Title subdivision.

4 . It is proposed that the existing two lots be consolidated into the one parcel of land achieving a total site area of 1868 m 2 . In total the subject sites have a frontage or a side boundary to Mona Vale Road of some 27 m, a frontage to Peace Avenue of some 27.5 m. The subject site is an irregular lot and there is a fall in terms of the topography of approximately 11 m in an easterly direction.

5 . Currently there are two dwelling houses on the subject land and the area generally is one that can be characterised as a low density residential area with single detached houses, many substantial houses within the area on relatively large allotments in a leafy, vegetated setting.

6 . Opposite the subject site which also has frontage to Mona Vale Road but opposite in Peace Avenue is a park known as Soldiers Park.

7 . The outcome of the proposed development (given the stages that I have described in terms of the development applications) is for three dwelling houses erected on the two consolidated blocks of land and subsequent subdivision of that land to create those lots for each dwelling. The single dwelling is the one closest to No 2 Peace Avenue and the attached dual occupancy is the one that is closer to the Mona Vale Road boundary.

8 . The development application was amended subsequent to council's determination. The amendments, which were not opposed by the council, include: the retention of the most significant eucalypt gum which is in the street verge of the property closest to Mona Vale Road but within Peace Avenue, the addition of privacy screens for adjoining dwellings; as well as the proposed development and landscaping to reflect council's requirements and those of the adjoining residences.

9 . During the proceedings there were further discussions between the parties with respect to a number of the issues and there were agreed levels for various parts of the development.

10 . The area generally, as I stated, is described as above. It is important to note that the dwelling to the north of the subject land which has a boundary with Mona Vale Road and a frontage to Vista Street is a heritage item known as Robin Hill, a local heritage item under the Ku-ring-gai Planning Scheme Ordinance (KPSO). The dwelling house immediately to the east of the subject site is a Cape Cod dwelling and it is significantly lower in terms of the topography than the subject land.

11 . A statement of issues was prepared, however, it is more important and insrtructive to have regard to the experts' joint statement in terms of the issues.

12 . Issue one was the extent of cut and fill required for the subject site. The experts agree that the excavation may not be as excessive as first thought and in this regard there were RL's agreed to in terms of the development application.

13 . The streetscape issues 2, 3 and 4 here the experts agree that the proposal will have no detrimental impact on the Mona Vale Road streetscape. The experts could not agree as to the nature and extent of the impact on the Peace Avenue streetscape.

14 . With respect to issues 5 and 8, that is, the setbacks and elevation of the pool, the applicant is prepared to modify the proposal with regard to the location of the swimming pool and therefore this was no longer an issue.

15 . With respect to visual bulk the experts agreed there is no visual bulk on the Mona Vale Road streetscape. The experts could not agree on the visual impact as viewed from No. 2 Peace Avenue and No. 1 Vista Place and with respect to solar access it was agreed there was no unacceptable additional overshadowing of the adjoining property at No 2 Peace Avenue. Mr Sanders, however, had concerns about the solar access of the open space for the proposed dual occupancy development. Mr Glendinning, on the other hand, was of the opinion that there were alternative open space areas available to satisfy the solar access requirements.

16 . With respect to issue No 9, is visual and acoustic privacy, the experts did not agree. In this regard there are two issues, that is, the impact of the proposed development on No 1 Vista Street, the 'Robin Hill' heritage item, and also the internal impact in terms of the attached dual occupancies in terms of visual and acoustic privacy. The council's expert was of the opinion that the proposed development did not provide for appropriate visual and acoustic privacy.

17 . Once again, the issue of private open space, issue No 10, was that there were open space areas proposed adjoining or adjacent to Mona Vale Road which were not considered appropriate by the council's expert in terms of amenity and the issue of geotechnical report was largely resolved by a 'deferred commencement' condition which the applicant is prepared to accept. The issues concerning the public interest were also noted by the council.

18 . The development applications were advertised and there were two submissions received in respect of the development applications. One of the owner's of the adjoining property, the heritage item, Mr and Mrs Palmer raised concern about the proposed development in terms of the impact on their heritage item and in particular the visual and noise impacts. They were also concerned about the proximity of a dwelling house on their rear boundary. The heritage item of 'Robin Hill' originally enjoyed a very large curtilage. It has subsequently been subdivided and dwelling houses approved to its east in Vista Street and also the subdivision of this land was created some time ago and the current proposal, is for the consolidation and for a development under the provisions of State Environmental Planning Policy No. 53 for dual occupancy.

19 . The other objector to the development was Mr Brandon who lives at No. 1A Vista Street and his primary concern related to the impacts of the proposal on No. 1 Vista Street and No. 2 Peace Avenue. He is of the opinion that the proposal would be overwhelming in terms of No. 2 Peace Avenue and the Court also had the benefit of a view which was carried at the beginning of the proceedings with the parties and whilst there was no objection from No. 2 Peace Avenue the Court also had the opportunity of experiencing the development of that subject lot and having regard to the proposed developments.

20 . Mrs Linda Palmer as well as Mr Bill Palmer gave evidence to the Court on separate occasions. The Court heard from Mr Bill Palmer yesterday in terms of the amended plan which was provided to the Court to show a minimum 3 m setback from the rear boundary. The plan was amended in that regard because there was an understanding that there was a minimum of 3 m from their common boundary and the Court availed them the opportunity of also giving further evidence in the circumstances of the case.

21 . For the council Mr Harvey Sanders, consultant town planner, gave evidence to the Court and for the applicant Mr Ian Glendinning gave evidence to the Court.

22 . Mr Sanders' concerns were primarily in terms of the internal amenity of the dual occupancy development, that is, the visual and acoustic privacy between attached dwellings in terms of the juxtaposition of those dwellings and their terraces and the solar access to those properties.

23 . He was also concerned about the streetscape in terms of the presentation of the development to Peace Avenue. He said it was uncharacteristic in the area and that the proposed development was "too much" for the subject land. He also considered that the relationship of the courtyards adjacent to Mona Vale Road would not have high utility given the noise experienced from the traffic on Mona Vale Road.

24 . Mr Ian Glendinning was of the opinion that the proposed development was satisfactory in terms of internal amenity and that occupants of the future dual occupancy development would have the opportunity of availing themselves of alternative areas of open space to achieve the required amount of solar access. And in terms of the juxtaposition of the terraces of the dual occupancy he is of the opinion that they are adequate having regard to the landscaping, the distance and the acoustic screens proposed.

25 . In terms of the proposed development the council officers' report provides information with respect to the built upon area and the floor space ratio of the proposed development.

26 . First of all I will outline the planning regime under which this development application must be assessed. The State Environmental Planning Policy No 53, Metropolitan Residential Development , is a State Policy to facilitate dual occupancy development. The aims of this policy is to encourage the provision of housing in metropolitan areas that will broaden the choice of building types and locations available in the housing market; make more efficient use of existing infrastructure and services; reduce the consumption of land for housing; and be of good design. These aims are to be achieved through planning controls.

27 . With respect to development standards there are a number of development standards contained within the policy which require that the allotment size must have a minimum area of 400 m2 for two dwellings that are attached or 600 m2 where dwellings are detached. It provides a floor space ratio of 0.5:1. The proposed development, the dual occupancy, is .49:1.

28 . State Environmental Planning Policy No. 53 also has an objective with respect to design requirements, that is, to encourage good design in residential developments and development must be accompanied by a site analysis. There are also a number of design requirements established in cl 32. And in particular the one the council expressed the greatest concern about was 32(h) which is the visual bulk of the proposed development. This reads: Proposed development should where practicable: maintain reasonable neighbour amenity and appropriate residential character by providing building setbacks that progressively increase as wall heights increase to reduce bulk and overshadowing; use building form and siting that relates to the site's landform; adopt building heights at the street frontage that are compatible in scale with adjacent development; and considering where buildings are located on the boundary, the impact of the boundary walls on neighbours.

29 . The other design criteria within cl 32 relate to streetscape in that the development must contribute to an attractive residential environment with a clear character and identity and the visual and acoustic privacy is also to be considered under this clause, as well as solar access, stormwater, crime prevention, accessibility and waste management.

30 . The Ku-ring-gai Planning Scheme Ordinance is a document that must be taken into consideration in particular with respect to cl 9, the schedule of residential objectives. Under Sch 9 of the KPSO the subject site is zoned residential. Dual occupancy is not permissible under that scheme and therefore the development relies on the provisions of SEPP 53.

31 . Schedule 9 has a number of aims and objectives for the residential zone including: "that all new dwelling houses and additions must maintain reasonable levels of sunlight access to neighbours' properties and sited and designed to minimise overlooking of neighbours' living areas and recreation space".

32 . The specific provisions for dual occupancy for Ku-ring-gai are contained within the Development Control Code which was adopted by the council in April, 2003. This code is to be taken into consideration in particular where it does not conflict with the provisions of SEPP 53 and there are a number of design criteria and assessment criteria in the document that relate to visual character to ensure that development retains consistency with surrounding areas and integrates the built form and soft landscaping. There are also provisions with respect to visual privacy. It contains visual and acoustic privacy objectives to ensure that development and the overlooking of neighbours' living areas is mitigated and acoustic privacy provisions are also contained in the plan. There are also provisions with respect to solar access however, it is agreed that solar access in terms of the adjoining properties is not an issue in the proceedings, only in terms of the internal amenity.

33 . The design requirements and controls also contain a number of areas which are similarly stated in cl 32 of SEPP 53. There are provisions with respect to visual bulk is to maintain reasonable neighbour amenity and appropriate residential character by providing setbacks that progressively increase as wall heights increase and using building form and siting that relates to land form and adopting building heights at the street frontage that are compatible. There are also a number of provisions with respect to setbacks in terms of front setbacks and side and rear setbacks in particular, side and rear setbacks should allow for sufficient landscaping between buildings, particularly for two storey structures to soften the visual appearance when viewed from the street and from the neighbouring property.

34 . There is a provision that requires a rear setback minimum of 3 m and there are then provisions relating to the maximum built upon area and for two storey dwellings and this is 40% of the site area. The floor space ratios are consistent with those contained in SEPP 53.

35 . I have considered all the relevant controls and the provisions of the dual occupancy code where they do not conflict with SEPP 53 as relevant matters for the Court's consideration in this development application as well as the general provisions of s 79C of the Act.

36 . The council officers recommended refusal of the application and the reasons for the refusal of the application at the time of the determination related to: unsatisfactory impacts upon the significant and prominent trees and council's nature strip, the garage of house one and its setback; the height of the pool and the open space on Mona Vale Road; and various levels and geotechnical reports.

37 . As I stated, the plans were amended to overcome some of the issues and the amended plans are the subject of these proceedings before the Court.

38 . Council's urban design and heritage adviser considered the proposal and raised no objection to the development in relation to urban design, streetscape or heritage issues. In this regard it is important to note that in terms of the KPSO I must have regard to the provisions of development near heritage items and I have done so. The development applications in terms of the council officers' report made the comment that the applications have appropriately addressed visual and acoustic privacy impacts except in relation to the house one courtyard.

39 . With respect to solar access the officer's report states that the dwellings have been appropriately oriented and sited and designed in terms of solar access and design.

40 . For the streetscape on Peace Avenue the officers were of the opinion that the proposed development was not satisfactory and also there was the issue of the tree being required to be removed when the development application was lodged with the council.

41 . I have considered all of the evidence to the Court and comprehensively assessed the application. I have had regard to the concerns of the adjoining neighbours and in particular those of Mr and Mrs Palmer. Mr and Mrs Palmer bought the heritage item of 'Robin Hill' approximately four years ago and are in the process of restoring that property. It is and will remain the property at the most elevated position in the area even though its dominance is impacted by development around it in terms of vistas to and from that building. However, this has been created by the subdivision of what was its previous large curtilege.

42 . With respect to the streetscape of Peace Avenue. I had the opportunity of the view and the opportunity of examining the plans. I am satisfied that the proposed development is not incompatible or inconsistent with the streetscape of Peace Avenue. In Peace Avenue one can see that there are varied setbacks, there are structures, car ports and garages, that at times are relatively close to the street boundary, at other times they are set back but there is no clear consistency of an established setback line because of the topography of the land. The proposal will be in an attractive vegetated setting as for all the dwellings within Peace Avenue.

43 . I am satisfied with the retention of the most significant and attractive tree that the proposed development will sit most comfortably in the streetscape of Peace Avenue despite the fact that the setbacks do not in a numeric sense comply with council's requirements.

44 . I am of the view that the proposed development in terms of its presentation to the street will present as two additional large dwellings in the streetscape and from my assessment it would not warrant refusal of the application. I also have had regard to the proposed development when viewed from Soldiers Park which is the public domain as well and I am satisfied with the existing street tree and with the proposed landscaping and configuration of driveways that the proposed development will fit comfortably in the streetscape. Streetscape was not an issue in terms of the Mona Vale Road frontage.

45 . With respect to the issues I will now move on to the impact on the adjoining development. Number 2 Peace Avenue which is the Cape Cod dwelling and at a significantly lower point in the topography of Peace Avenue, the experts agreed that there would be no additional overshadowing by the proposed development. I am satisfied that a dwelling house erected on what will be the adjoining block to No. 2 Peace Avenue will not unreasonably impact on No. 2 Peace Avenue and I say this having regard to the fact that the Court had the opportunity of experiencing the change in levels of the land between the two properties and I am satisfied that a dwelling erected in the location proposed for the subject site would not create undue impacts on No. 2 Peace Avenue.

46 . The topography is clearly the constraint in terms of the juxtaposition of No. 2 Peace Avenue. Number 2 Peace Avenue enjoys a sloping grassed area on its eastern side and the driveway of the dwelling house is on its western side which adjoins the subject site. I am satisfied that there will be no or very little impact in terms of overlooking and I am satisfied that the proposed development will not impact on the amenity of that dwelling. The rooms in the roof or the Cape Cod portion of the house are bedrooms, as advised on site. The proposed adjoining dwelling to No. 2 Peace Avenue will in fact sit and read as a residential dwelling on a large parcel of land and in the Court's mind there is nothing that would warrant its refusal.

47 . With respect to the Brandons' property at No 1A Vista Street Mr Brandon indicated to the Court that there was no actual affectation from the amended plans on the amenity of his property. It was noted on the view that the Brandons have a very thick vegetated 'wall' along the western boundary of their property where it adjoins the heritage item and that will also largely obscure view of the proposed dual occupancy development. There are no unreasonable impacts created by this proposed development on No. 1A.

48 . With respect to No 1 Vista Street, the heritage item, this has required careful consideration by the Court and I am mindful that it was originally a grand dwelling or mansion in a very prominent location in Sydney with most expansive views. The role of the Court in its assessment is to look at this development on the subject land, it is not to go back in history so to speak to look at the subdivision and how the lots were created around the subject heritage item.

49 . Having said that, it is also important that the amenity of heritage items in particular is maintained because they are a community asset and clearly the Palmers have put a great deal of effort and work into their heritage item. For this reason the Court did allow further evidence to be given and I did hear evidence from Mr Palmer, as I stated, yesterday in respect of the amended plans. The Court was of the view that this was the only issue that in fact required extensive examination and it had expressed concern that there was not a minimum 3 m setback from the proposed boundary as had been described on the site inspection and in that regard amended plans were submitted which became Exhibit 'H' which was not objected to by the council and rightfully the Palmers also had the opportunity to comment on same.

50 . Mr Palmer expressed concern about the overshadowing and in that context he was very clear: The imposing nature of a development 3 m from the side boundary and the impacts in terms of their residential amenity on their swimming pool area and parts of their dwelling house. I have carefully looked at the plans and the amended plans in particular. The amended plans provide for a minimum setback of 2.989, 3 m from the rear boundary on the ground floor level (the bottom level) of the dual occupancy house that is closest to its boundary increasing to 3.65 on the ground floor and then at the first floor level (or the upper level) of that dual occupancy dwelling there is a minimum setback of some 3 m increasing to just over 4 m at one point and where the balcony adjoins the boundary it is some 3.9 m from the boundary.

51 . I have also had regard to the rooms and the apertures in terms of windows on the northern boundary where it adjoins 'Robin Hill' and from the northern elevation it can be seen that there are two kitchen windows in that elevation, that is on the upper floor, a terrace at the end which has a proposed privacy screen and on the ground floor level there are two bedrooms with sliding doors.

52 . I have also had a look at the site lines and I have had regard to the need for obscure glazing to 1.6 m for the kitchen windows with fixed glazing to that point and the need to increase the height of the terrace translucent screen at the end where it adjoins the boundary some 4 m off and the need for a 2 m high fence which was a preference of Mr Palmer. In the circumstances of this case, and having regard to council's controls, I consider that it would be appropriate for a 2 m fence.

53 . I am satisfied that the relationship of the proposed development is satisfactory. This is not to say there will not be some impact and there will be a built form in a current location where there is a dwelling some 5.5 m from the existing northern boundary. The proposed development will range between 3 to 4 m at that point.

54 . I am also conscious of the fact that landscaping can be provided - not to screen in the Palmers' delightful residence, but to complement the proposed development. And I am satisfied with the setback and the relationship of the windows that whilst there will be a change the impact is reasonable in the circumstances having regard to the relevant planning provisions and this would not warrant refusal of the development application.

55 . It is also noted that the council officers were of the opinion that the juxtaposition was appropriate prior to the additional amendments.

56 . The proposed development will allow for dwellings to sit within a landscaped setting which is commensurate with the leafy nature of Pymble. With respect to the internal amenity aspect, that was also raised as a concern by Mr Sanders, I am persuaded by the applicant's evidence that the option or the alternative open space areas provided for in the development would provide satisfactory amenity for the proposed dual occupancy dwellings even though some of the open space areas that will receive solar access are not ideal in terms of experiencing noise exposure from Mona Vale Road. Nonetheless I am satisfied that it is not unusual for dwelling houses to avail themselves of alternative areas seeking winter solar access and in this regard the proposed development is satisfactory.

57 . Also with respect to the juxtaposition of the terraces it was proposed that there be acoustic screening on the terraces to ameliorate visual impact as well as acoustic impact and I am satisfied that the relationship is satisfactory in the circumstances of this case for the attached dual occupancy.

58 . I must have a focus on the relevant controls and SEPP 53 in particular requires that I give consideration to cl 32 in terms of the design criteria and I am satisfied the proposed development in terms of streetscape will contribute to an attractive residential environment with clear character and identity. With respect to subcl (2) - heritage conservation areas and items, I am satisfied that in terms of council's Local Environmental Plans and the relevant provisions for heritage that the development is satisfactory.

59 . With respect to 32(b), visual/acoustic privacy, as I have described above, I am satisfied that there is appropriate site planning, location and design of windows and balconies and the use of screening devices and landscaping to ensure acceptable noise levels and privacy for the dwellings.

60 . With respect to (b), solar access and design for climate, once again I am satisfied on my assessment that there is adequate solar access to the proposed dwellings.

61 . Clause 32, stormwater and (e) and (f) not were issues. With respect to 32(h) "the proposed development should where practicable maintain reasonable neighbour amenity and appropriate residential character, that is, providing setbacks that increase with wall heights to reduce bulk and overshadowing". Overshadowing was not the issue but the bulk was the issue and with the amended plan and the setbacks as shown in the amendments and the accompanying landscaping I am satisfied this is achieved.

62 . With respect to (b), "using building form and siting that relates to the site's landform" I am satisfied given the levels and an assessment of the application that the building form is appropriate to the site.

63 . With respect to (c), "adopting building heights at the street frontage that are compatible in scale with adjacent development", this is satisfied by the proposed development. The proposal will read as two dwellings in a residential street.

64 . Subcl (d) of (h), considering where buildings are located on the boundary, the impact of the boundary walls on neighbours, once again, as I stated, the Palmers' residence at No 1 will experience change in terms of having a building erected between 3 and 4 m on part of its rear boundary but I am satisfied that having carefully inspected the property and the juxtaposition of the various rooms and the open space areas that the proposed development provides for satisfactory amenity to both the proposed development and the existing heritage item.

65 . The Court was advised that there have been previous decisions within this Court by Judges, in particular that of her Honour, Pearlman CJ, and his Honour, Cowdroy J. in respect of a matter for the subdivision and the erection of dwellings. Pearlman CJ's case was Demihale v Ku-ring-gai Council which I have had the benefit of reading as well as the more recent case of Porfuri v Ku-ring-gai Council in terms of the schema for the four development applications and four appeals in these proceedings.

66 . The conditions are as generally agreed to between the parties and in that regard the Court is grateful to the parties in terms of arriving at an agreed set of conditions in terms of the various appeals and the fact that this will then be a staged development. The consolidation of the lots prior to any commencement is a requirement and agreed to by the Court.

67 . The only conditions that would change from those that are contained within Exhibit 10 are that there would be a 2 m high fence between the Palmers' property and the proposed development, the northern boundary of the subject site, and that is to be constructed prior to any further works on the subject site and the cost is to the applicant. The details for the fence must be submitted to the council for its urban design and heritage adviser to approve and clearly there will be regard to the views of the Palmers in the fence to be constructed. The balustrade of the terrace on the northern elevation of house one is to be to a height of 600 and to incorporate a planter box and a translucent screen to a height of 1.8 m.

68 . The other conditions are, as I stated, as generally agreed to between the parties. There are a number of deferred commencement requirements apart from those that I have just highlighted above which would require submission to council of a consolidated set of plans to show amendments or information with respect to floor levels and certain acoustic barriers between the dual occupancy houses.

69 . The resultant development with the approval of all the development applications, four in total, will provide for a Torrens Title subdivision of the lot near Mona Vale Road of 581 m2 and 505 m2 and a lot of 782 m2 adjoining No. 2 Peace Avenue.

70 . The built upon area, as I stated, is 36% for the property adjoining No. 2 Peace Avenue and 49.9% for the property that has a rear boundary to Robin Hill. The floor space ratios respectively are 0.29:1 and that is for house three and 0.47:1 for houses 1 and 2.

71 . The houses are described in the conditions as: house one adjoining 'Robin Hill'; house two - the property that adjoins Peace Avenue closes to Mona Vale Road; and house three the property that adjoins No. 2 Peace Avenue.

72 . On the basis of my assessment the orders of the Court are: (1) The appeals in respect of the properties known as 2 and 2A and 2B Peace Avenue, Pymble, are upheld. (2) The development applications submitted to Ku-ring-gai Municipal Council, and as amended, for the erection and subdivision of the land for three lots and three dwelling houses, one attached dual occupancy, is approved subject to the conditions contained in the annexures. (3) The exhibits with the exception of Exhibits 10 and D, F, G and H are returned.

73 . There will also be an additional condition that the final set of the one to one hundred plans be forwarded for the Court's file. I have made a note of the RL issues so that if there is a final set for the Court's file that is also of assistance if there is any further dispute. _______________________ J S Murrell Commissioner of the Court Ljr/rjs

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