Kenny v City of Ryde Council

APPLICANT Mr A. Sattler, solicitor Sattler and Associates Pty Limited LEGAL REPRESENTATIVES:

RESPONDENT Mr N. Strati, solicitor

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10176 of 2007 Neil Kenny v City of Ryde Council This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT 1 This appeal is against council's refusal of a development application for a relatively large dwelling at 14 Teemer Street, Tennyson Point, which has a proposed floor space ratio (FSR) in the order of 0.71:1. The details of the property, the proposal and planning controls are contained in the statement of basic facts on which I rely.

2 The site is zoned residential 2(a) under the Ryde Planning Scheme Ordinance (RPSO) and the proposal is permissible with the consent of the Council. It is also subject to the provisions of the Consolidated Development Control Plan (DCP), which allows a maximum FSR of 0.5:1.

3 This development control is contained in Section 3.2 - Design Element 2 - Bulk and Scale, with the stated objectives are: o To ensure the bulk and scale of new development protects reasonable neighbourhood amenity and maintains appropriate residential character. o To allow adequate daylight, sunlight and ventilation to the living areas and private open space of new and neighbouring dwellings. o To encourage the sharing of views, whilst not restricting reasonable development of the site. 4 The controls provides for a maximum FSR of all buildings including out buildings to be not greater than 0.5 : 1. Also, that the height of the building must not exceed seven metres or two storeys. The overall height of the building should not exceed 9 metres.

5 In this case, the main issue concerns the bulk and scale of the proposal in terms of its exceedence of the FSR control. In particular, this relates to the amount of excavation and resultant floor space created in the basement to accommodate 3 cars, 2 air-conditioning rooms, 2 x 10000 litre water tanks, a battery room and a home cinema room.

6 The inclusion of the basement level is required by the DCP in the floor area calculations, resulting in the 0.71:1 FSR. However, the above ground floor level is in the order of 0.51:1 FSR. 7 According to the applicant's submission, this additional floor space is required to accommodate the extra ESD elements and results in the dwelling still complying with the overall height and building envelope. As this additional basement floor space is indiscernible, the applicant submits that the proposal should be allowed.

8 At this on-site hearing, the Court had the benefit of the opinions of Mr. Yang, Mr. Reddy, Council's planners and Mr. Gozling, the applicant's consulting planner. Mr. Gozling supports the proposal because he says it is sympathetic to the corner site contours and does not create any adverse amenity impact on neighbouring properties. Also, he refers to other nearby dwellings in this neighbourhood to which he says the proposal is compatible with the character of the area.

9 By reference to section 3.2 of the DCP, Mr Yang expressed his opinions on the proposals relationship to the objectives, whereby the first objective is to ensure the bulk and scale of new development protects reasonable neighbourhood amenity and maintains appropriate residential character. He accepted that the proposal generally complies with this objective. 10 The next objective deals with adequate daylight, sunlight and ventilation in living areas and open space of nearby neighbours. It was also acknowledged that the orientation of this proposal does not adversely impact on neighbouring properties. The next objective involves sharing of views, but this issue does not arise in this proposal.

11 In terms of the visual bulk, the main elevation is the street elevation in Teemer Street whereby the proposal does comply with the overall height and building envelope control. However it presents as a 2 storey residential building over a substantial part of the garage. Mr Yang agreed that if there was a conventional 2-car garage, then this presentation would be generally acceptable in this streetscape. Notwithstanding this, he maintains his concern about the additional floor area in the basement.

12 In my assessment, the visual impact of the proposal is important in terms of what that desired element on bulk and scale is trying to achieve, considering that the other controls in section 3.2 are complied with. In this context, submissions were made to the planning principles in PDE Investments No 8 Pty Ltd v Manly Council [2004] NSWLEC 355, wherein Tour C said: 48. The question of whether a building envelope can be filled when the FSR control would produce a smaller building is one that arises from time to time in Court proceedings. The following planning principles are therefore of assistance: i. FSR and building envelope controls should work together and both controls and/or their objectives should be met. ii. A building envelope is determined by compliance with controls such as setback, landscaped area and height. Its purpose is to provide an envelope within which development may occur but not one which the development should necessarily fill. iii. Where maximum FSR results in a building that is smaller then the building envelope, it produces a building of lesser bulk and allows for articulation of the building through setbacks of the envelope and variation in building heights. iv. The fact that the building envelope is larger than the FSR is not a reason to exceed the FSR. If it were, the FSR control would be unnecessary. 13 It seems to me that the current case can be distinguished because the proposal comfortably complies with the building envelope controls, which indicates the amount of structure anticipated above ground. However the exceedence of the FSR arises due to the extensive floor space created in the basement.

14 Insofar as this additional floor space is largely indiscernible, it offers in my opinion, worthwhile offsets by way of providing space for the ESD components compromising; the 2 x10000 litre water tanks, the air-conditioning rooms and battery room. The water tanks could otherwise be placed in excavation outside the building footprint (thus reducing the FSR), but probably limiting the amenity of the landscaped areas. The Court was told that the battery room is required to store solar energy and the separate air-conditioning plant rooms are located so as to reduce energy demands from the use of more temperate air in the building, than from outside sources. Also, noise from the air-conditioning units will be contained within the basement, so as to reduce any possible amenity impacts on neighbouring properties.

15 Obviously, these components could be eliminated to reduce the FSR and a smaller, conventional 2 car garage allowed with frontage to Teemer Street, which Mr Yang said would be compatible with the neighbourhood. But this is likely to result in a very similar visual and streetscape impact. In the circumstances of this case, I consider the applicant submissions that additional weight be given to the incorporation of the ESD components in this proposal has considerable merit. 16 I am satisfied that the objectives of the bulk and scale design elements are satisfied in this case so as to allow the exceedence of the FSR because the proposal protects reasonable neighbour amenity and maintains an appropriate residential character.

17 Insofar as objections were made to the extra excavation to incorporate these ESD components, the Court was not informed of any compelling reasons as to why this excavation should not be allowed or whether there were any disposal problems that would cause environmental problems. The proposed excavation is contained well within the subject site, away from zones of influence on neighbouring properties and conditions of consent can be imposed which require any excavation to be undertaken in accordance with current safe engineering practice.

18 In the ultimate, I consider that this proposal represents a reasonable balance in the amenity for this corner site, which has sloping topography that restricts any discernable impact on the public domain and importantly it allows the incorporation of the desirable ESD feature, which are preferably placed in the basement to reduce energy usage. On this basis, I consider that conditional consent should be granted.

19 The conditional consent should also include the rear garage, which I consider should maintain a 900mm boundary setback, to be consistent with the other structures in the immediate area. Compliance with this setback should allow some provision for maintenance and landscaping. Court Orders 1. The appeal is allowed.

2. Development is granted to DA 460/2005 for demolition of an existing dwelling and construction of a 2 storey dwelling over basement at 14 Teemer Street, Tennyson Point, subject to the conditions in Annexure "A".

3. The exhibits may be returned except for 1 (part conditions) and A.

      R Hussey

Commissioner of the Court ljr

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