Leonard v Ku-ring-gai Council

Land and Environment Court (NSW)|2004-06-03|Before: Cowdroy J, Mr P

Introduction 1 This is an appeal against the refusal by Ku-ring-gai Council ("the council") of a development application (No 1652/03) to construct two detached dual occupancy developments on lot D in DP 324517, known as 20 Warwick Street, Killara (Appeal No 10117 of 2004). I record that in this appeal I have been assisted by Commissioner Tuor of the Court. 2 A development application (No 1653/03) to demolish the existing house and subdivide the site into two allotments was approved by council but the applicant is appealing against a condition of development consent ("Condition 55") which requires the boundary between the allotments to be straightened (Appeal No 10116 of 2004). The applicant stated that this appeal would be discontinued if the appeal against the refusal of the dual occupancy developments was not upheld.

The site and its context 3 The site is located on the western side of Warwick Street, Killara. It has an area of 2928 square metres with the frontage to Warwick Street of 41.7 metres and a depth of about 70 metres. The site is located on the low side of Warwick Street and slopes approximately 13 metres towards the rear of the property. A watercourse follows the northern boundary of the site. A number of large trees, mainly Sydney Blue Gum are growing beside the creek. Other trees are scattered throughout the site, which is currently developed with a part one, part two-storey house located towards the centre of the site. 4 The surrounding area is characterised by single dwellings on large allotments in landscape settings. The allotments include a number of battle axe blocks and the houses are predominantly one and two-storey with some three-storey houses. There are a range of style and sizes, predominantly dating from the 1950's and 60's. Although there are some earlier houses, generally smaller cottages as well as more recent, larger houses. The gardens and streets in the area have large canopy trees that contribute to the character of the area. Background 5 The applications were lodged on the 16 December 2003. They were notified to nearby residents and 46 objections and one petition with 218 signatures were received by the council. The council approved the application for subdivision on 19 May 2004 and refused the dual occupancy application, under delegated authority, on 7 May 2004. Proposal 6 Development application (No 1653/03) sought approval to demolish the existing house and subdivide the existing allotment into two allotments. On approval, lot A is located at the front of the site and has an area of 1383 square metres; lot B is a battle axe allotment located at the rear of the site and has an area of 1545 square metres. 7 Development application (No 1652/03) seeks approval to construct two separate houses on each of the allotments. The houses are two to three storeys, the third story being contained within the roof space. Each house would contain four bedrooms plus a bedroom/study, with living, formal and informal dining and family areas and games room. They would have large decks facing north off the family and informal eating area. The houses are nearly identical in design and step down the site to respond to the slope of the land. 8 The driveway runs along almost the length of the southern boundary. The buildings are set back about 7m from this boundary, 4m from the western boundary, 9m from the front boundary and 12m from the northern boundary. A riparian zone is to be established within the northern setback area. The first floor decks encroach into this zone by up to 4m. A maximum distance of about 3.7m separates the houses. This area contains drying areas, courtyard spaces and accommodates a change in level between the houses of about 1.5m. 9 The riparian zone is to be rehabilitated with the removal of weeds, the retention of existing trees and the planting of new trees and under storey planting. The rest of the site is to be landscaped. 10 The houses on lot A (dwellings 1 & 2) have a floor space ratio of 0.49:1, a built upon area of 44% of the site and a gross floor area of 325.1sqm for dwelling 1 and 351.9sqm for dwelling 2. 11 The houses on lot B (dwellings 3 & 4) have a floor space ratio of 0.46:1, a built upon area of 57% and a gross floor area of 359.2sqm for both dwellings 3 and 4.

Statutory Framework 12 The site is zoned residential 2(b) under the Ku-ring-gai Planning Scheme Ordinance ("the KPSO"). The proposed subdivision exceeds the minimum allotment sizes in cl 58B of the KPSO. Dual occupancy development is not permissible within this zone and exemption is sought under State Environmental Planning Policy No 53 - Metropolitan Residential Development ("SEPP 53"). 13 Clause 3 of SEPP 53 states:- (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, (b) make more efficient use of existing infrastructure and services, (c) reduce the consumption of land for housing and associated urban development on the urban fringe, and (d) be of good design. 14 Part 3 of SEPP 53 contains provision for dual occupancy development. The objectives in cl 15 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 the full understanding of the opportunities and constraints of each site, and (ii) designed and assessed having adequate regard for the design principles contained in Part 5. 15 The relevant standards that relates to dual occupancy development in cl 19 require a minimum allotment size of 600 square metres for detached dwellings and a maximum floor space ratio ("FSR") of 0.5:1. Clause 20 makes provision for two car spaces to be required for each dwelling with a gross floor area of more than 150 square metres. 16 The design requirements for dual occupancy development are set out in Part 5 cl 32 includes the following requirement:- Consent must not be granted for 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.

Compliance with the requirements of this clause was the key issue between the parties and the main concern of the residents. 17 Clause 32 also includes requirements relating to visual and acoustic privacy, solar access and design for climate, stormwater and visual bulk. 18 The Ku-ring-gai Development Control Code ("the DCC") is an adopted policy of Council which 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. 19 The site is within 40 metres of the top of a riverbank and pursuant to s 22B of the Rivers and Foreshores Improvement Act 1948 a Part 3A Permit is required. As such the dual occupancy development is integrated development under s 91 of the Environmental Planning and Assessment Act 1979. The Department of Infrastructure, Planning and Natural Resources has issued General Terms of Approval. These include the requirement that a riparian zone be established along the watercourse. The riparian zone should be an average of 10 metres and minimum of five metres from the top of the bank of the watercourse and is to be planted with a diverse range of native plant species local to the area that are densely planted and fully structured. A s 88B instrument is recommended to protect and maintain the riparian zone.

Issues 20 The Statement of Issues contains 8 issues. The issues, except Issues 6 and 8, were resolved by the approval of the subdivision application, submission of further information, the joint statement of the experts or proposed conditions. The remaining issue in contention between the parties relates to whether the development contributes to the character of the area. This concern was shared by the residents who raised a number of other concerns which can be summarised as:- i. the removal of trees from the site and the impact on the Sydney Blue Gum trees; ii. the increase in water runoff from the site and potential flooding of properties down stream of the development; iii. Impacts on adjoining and nearby neighbours, particularly privacy impacts from overlooking and noise and changed outlook; iv. the lack of visitor parking and the increase in traffic generated by the development; 21 The Court heard from a number of residents and had the advantage of a site visit. Mr L Fletcher, town planner for council and Mr A Minto, town planner for the Applicant, provided expert evidence to assist the Court. A Statement of Evidence from Ms M Howden, arborist for the applicant, and a report of Mr S Fenn, council's landscape development officer, were also provided.

Character of the area 22 Mr Fletcher described the key characteristic of the area as follows:- Very large allotment sizes with often substantial buildings located with generous landscaped areas around them and separating them from neighbouring buildings. Most buildings are designed with a dual orientation to both the streets and their rear private open space areas. I readily acknowledge that there are buildings relatively close together across side boundaries, but in most instances that closeness across side boundaries is compensated for by very generous front and rear yard areas. Another key characteristic is the diversity of the design and materials of individual buildings. From my observations, there is little or no evidence of repetitive building forms in the locality. 23 Mr Minto assessed the characteristics of the area to be more mixed than that described by Mr Fletcher. Mr Minto observed:- the surrounding subdivision pattern is varied comprising of both street front allotments and battleaxe allotments of varying sizes, noting that there are both allotments which are larger in size than those proposed as well as allotments which are smaller in size. 24 Mr Minto considered the built form to be a mixture of single storey and two-storey houses as well as a number of dwellings of more than two storeys. He emphasised that there are a number of houses in the area that are erected in close proximity to each other. 25 The experts also disagreed on whether the proposal would contribute to an attractive residential environment with clear character and identity. The difference of opinion is summarised in the joint statement of the experts. 26 Mr Fletcher considered that the proposal is unsatisfactory for the following reasons:- · The proposed development does not demonstrate that adequate regard has been given to the key characteristics of the attractive residential environment in the locality, namely the siting, orientation and spacing of buildings with generous landscaped front and rear yards; · the multiple rows of buildings stepped down the site with minimal separation between each buildings, the extent of hard paving and building site cover and the limited landscaped area provided differ very significantly from the pattern and characteristics of development in the locality; and · the repetitive form, design and materials of the proposed development results in a character more appropriate and typical in a medium density villa or townhouse zone and is antipathetic to characteristics of this attractive residential environment.

27 Mr Minto considered the proposal to be satisfactory for the reasons:- · The proposed 4 villas will largely not be visible from the street with the front house largely screening the other 3. · The only views of the entire development from the street will be via narrow view corridors to the north and south of the front house. These views will be largely obscured by existing and proposed vegetation and due to the narrowness of the view will not have an unreasonable impact · Views of the development from adjoining properties are offset by the generous setbacks from the sites side boundaries and the extensive vegetative screening. · The concept of large dwellings in close proximity to one another is not foreign to the surrounding locality. Two such examples of three to four dwellings in close proximity exist to the south of the site. 28 Mr Minto considered that the key difference between his opinion and that of Mr Fletcher was that SEPP 53 contemplates a different form of development to that which already exists and does not require new development to replicate existing development. In his opinion the test in SEPP 53 is whether the development contributes to an attractive residential environment and not, as suggested by Mr Fletcher, whether the siting of buildings within the development is consistent with, and contributes to, the key characteristics of the locality. 29 I accept Mr Minto's evidence that the test in SEPP 53 is not whether the development is to be the same as that which currently exists. The SEPP contemplates a different form of development, but that form must contribute not only to an attractive residential environment but also to one with clear character and identity. To achieve the objective, the new development must respond to those features of the existing area that provide the clear character and identity. In this location the key feature is evident from the circumstance that the built elements are subservient to the open space and landscape. The majority of houses are on large allotments, including battle-axe allotments. The size of the houses in relation to their allotments provides space and separation between buildings and for landscaping. This includes an upper canopy of large trees as well as landscaping around the houses. The size of these trees makes them a dominant feature and their canopy is visible throughout the area. 30 There are houses that have minimal side separation, but these houses are generally smaller and still appear as buildings in landscaped settings. They have large areas of open space to the front and rear which overall provides a sense of separation and space between the dwellings. These spaces are used only to provide a setback from the side boundary and landscaping. They are generally not activity areas other than to provide access. The houses in the area, and those that are close together are also different in design, size and materials. This means that the houses when viewed along the street, despite being close together, are clearly distinguishable as separate dwellings. 31 The size of the proposed allotments is not dissimilar to other allotments in the area. However, the placement of two almost identical houses on each allotment with very little separation will result in them appearing as one development. The separation between the houses is negligible, and is not sufficient to break down the overall mass of the development. 32 I do not accept Mr Minto's evidence that the development is acceptable as it is visible from only limited vantage points and will be screened by landscaping and hidden behind the front dwelling. The driveway runs along almost the length of the site and the placement of a tree and shrubs in front of each dwelling will not prevent the entire development from being seen down this driveway. The view corridor from the north is not narrow being some 12m to the boundary and a further 16m to the adjoining house at 22 Warwick Street. Landscaping may screen the development from this aspect but it is not a sound planning principle for a development to be acceptable only if screened. 33 The overall form of the development is likely to be seen through the landscaping. The elevation to the north is of four, three storey houses. Although the third storey is within the roof space which assists in reducing the overall bulk of each building, the roof space and the dormers are large, and the buildings will be viewed as three storeys. Four large houses with little separation is not characteristic of the area. 34 Houses one, two and three are built to their western boundary and separated by a maximum of 3.7m. A courtyard is proposed off the dining area on the eastern side of each house. These courtyards are below and face the blank wall of the adjoining house on the boundary. The experts were unable to confirm whether the shadow drawings included the change in level but they indicate that the area between the dwellings would be largely in shadow throughout the day in midwinter. 35 In contrast to the existing subdivision pattern of the street, the front of the proposed houses face the driveway to the south and the rear of the houses face towards the north with the deck as the main area of open space. The space between the buildings are similar to side setbacks. However, they do not serve a similar function as they also provide courtyard areas. The amenity and utility of these spaces was of concern to Mr Fletcher. He considered that the areas served little purpose and that the provision of two attached dual occupancy developments would enable greater separation that would better break up the development and provide opportunities for landscaping between the buildings. 36 Mr Fletcher also raised concerns about the amount of usable open space. A large part of the site is required as a riparian zone and will be densely vegetated. The area of open space, particularly for houses 2 and 3, is limited to the north facing deck areas. In his opinion this is not sufficient for dwellings of this size. Additionally the north will receive only filtered sunlight due to the dense planting required for the riparian zone. 37 The four houses are almost identical in design, materials and form. This is characteristic of villa or town house development and not characteristic of development in the area. The similarity of the houses means that rather than presenting as separate and different dwellings, they will appear as one homogenous development. This, together with the lack of separation between the houses results in a development that is different to the clear character and identity of the area to such an extent that it does not contribute to an attractive residential environment. Resident's concerns 38 In relation to the impact of trees on the site, particularly the Sydney Blue Gums. The Blue Gum High Forest is an Endangered Ecological Community. Ms Howden undertook a flora and fauna assessment in April 2004. This assessment concluded that the development will not have a significant impact on this endangered community and that a Species Impact Statement is not required. 39 Ms Howden also undertook an assessment of the significance and health of the existing trees on the site in October 2003. This assessment identified those trees that should be retained within and adjoining the site. The development proposes the removal of nine trees of which two were identified for retention in Ms Howden's assessment. Both these trees are not natives and council raised no objection to their removal. 40 However, council's landscape development officer, Mr S Fenn, raised concerns in relation to the impact of the development upon a number of trees which were identified for retention. The buildings would be in close proximity to some trees and within their primary root zone and that the canopy of these trees overhangs the buildings and deck. The canopy would require significant lopping. A requirement was included in the draft conditions, which identified the trees that would need to be lopped. 41 A further report of Ms Howden stated that the proposal would not have a significant impact on these trees. However, this report does not provide any assessment of the concerns raised by Mr Fenn, particularly the impact that the lopping of the canopy would have on the significance of the trees. Nor is any information provided or any conditions requiring special construction techniques suggested for the buildings within the primary root zones. The survival and impacts of the development on these trees was a significant concern to the residents. They consider them to be important to the character and identity of their area.

42 Issue seven raised the impact of the development on these trees as well as whether a Species Impact Statement was required. Council did not press this issue. While I accept that the requirement for a Species Impact Statement has been adequately dealt with I do not accept that there is evidence before the Court, which demonstrates that the impact on the trees, and the issues raised by Mr Fenn have been resolved. As the application fails on different grounds, further evidence on this matter is not required but the issue would need to be adequately addressed for any future application.

43 In relation to stormwater, the residents downstream of the development were concerned that the increase in built upon area would result in increased runoff and flooding of their properties. Mr P Mahony, of 13 Norfolk Street, was particularly concerned as his property is built over the open watercourse. The development proposes detention tanks, which will discharge into the watercourse. The purpose of the detention tanks is to detain the increased rate of runoff to match existing and post development flows. If achieved, the water conditions for properties downstream will not change and the risk of flooding will remain the same. In Council's opinion the proposal was acceptable subject to conditions. In the absence of any expert evidence to the contrary I accept that stormwater from the site can be adequately be addressed. 44 The relation to the impact on adjoining properties, the experts proposed a condition to screen the decks to prevent overlooking of the properties to the west. The setback of the development from 18 Warwick Street and 22 Warwick Street is sufficient to mitigate any visual privacy impacts. The development will result in an increase in noise from extra people using the site, but this is not unreasonable. The extra traffic along the driveway adjacent to 18 Warwick Street would result in an increase in noise, which is a negative feature of the development but is not unreasonable and of itself is not sufficient to warrant refusal. A reduction in the length of the driveway would reduce vehicular movement along the length of the site and the resultant noise. It would also reduce the amount of hard surface. The outlook from adjoining properties will change but the extent of this change is dependent upon the retention of trees and the provision of landscaping discussed above. 45 In relation to carparking, no visitor parking is provided but this complies with the requirements of SEPP 53 and council's code. There is adequate parking in the street and the traffic and parking generated by this development will not adversely impact on the area. Conclusion 46 The development complies with the numerical controls in SEPP 53 for dual occupancy development. The objectives for dual occupancy development are to ensure that the opportunities and constraints of each site are assessed and that there is adequate regard to the design principles to achieve good design. The watercourse, riparian zone, retention of trees and slope of the land are constraints that need to be addressed if the site is to be developed. For the reasons stated above, I find that the proposed development does not meet these objectives, as it will not contribute to a residential environment with clear character and identity. I am therefore not satisfied that adequate regard has been given to this principle and that, as required by clause 32 of SEPP 53, the application must fail.

Orders 47 In relation to Appeal No: 10117 of 2004 the orders of the Court are:

Development Application to construct two dual occupancy developments at lot D in DP 324517, known as 20 Warwick Street, Killara, is refused; 3. The exhibits may be returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Leonard v Ku-ring-gai Council [2004] NSWLEC 330 APPLICANT Mr B Leonard and Carnegie Credit Management Services Pty Ltd PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 10116 of 2004; 10117 of 2004 CORAM: Cowdroy J KEY ISSUES: Appeal :- development incompatible with surrounding development Environmental Planning and Assessment Act 1979, s 88B, s 91 LEGISLATION CITED: Ku-ring-gai Planning Scheme Ordinance Rivers and Foreshores Improvement Act 1948, s22B State Environmental Planning Policy No 53 - Metropolitan Residential Development CASES CITED: DATES OF HEARING: 01/06/2004; 03/06/2004 EX TEMPORE 06/03/2004 JUDGMENT DATE :

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