Macri v Ku-ring-gai Council

Assessment and findings 45I have assessed the proposal, having regard to the statutory planning framework, the site inspection, and all the evidence to the court including that of the experts and residents. I have determined on a merits assessment that the proposal is worthy of approval for the reasons below. 46The first contention raised by the Council is that the proposed site has a frontage of 23.775 m, whereas the requirement in the Town Centres LEP 2010 requires a frontage of 30 m. It is now agreed between the parties that the 30m is a development standard and amenable to a variation on written request from an applicant and this is contained in Mr Vescio's statement of evidence. 47By way of comment only, it was rather unfortunate that half way through his final submissions Mr Leggat SC for the Council raised doubt as to whether the 30m was a development standard, or acted as a prohibition. He felt compelled to raise it as a jurisdictional matter and he referred to the Court of Appeal judgment of Agostino v Penrith City Council [2010] NSWCA 20 172 LGERA 380. He submitted that the approach taken by the planners to cl 6.1 on the 30m standard, may not be correct, although he could not assist the Court as to the proper construction. On reconsideration, he then submitted that "the council wishes to make a concession for the purposes of this case." Given that Mr Leggat raised a basic jurisdictional point that I was without power to determine the matter, I considered it inappropriate to make a concession for this case and if a jurisdictional point is raised it must be dealt with fairly and squarely. Mr Leggat submitted that the law operates on a case-by-case basis. However it seems to me this goes to the merits of an application assessed against the legal framework. In other words, I stated that I cannot make a concession on the statutory planning framework for one case if I do not have jurisdiction as clearly this would be erring in law to do so. Indeed in initially raising the matter Mr Leggat submitted "this is a legal point and if there is no jurisdiction the Court cannot purport to grant consent". Following further discussion, Mr Leggat stated that: "council's present view is that cl. 6.1 is a development standard and amenable to cl 4.6 in the LEP and as such in the circumstances, the application can be assessed on its merits." As such there is no jurisdictional impediment to me determining this application. 48I now turn to the objection submitted on behalf of the applicant to vary the minimum frontage. The 30m standard is contained in clause 6.1 of the LEP and this frontage is required for sites where the area of land is 1800 sq m or more. The subject site has an area of 1942 sq m, that is 142 sq m above the 1800 sq m. While the site is only 8% larger than a site requiring a 23 m frontage this in itself does not justify a variation and in my consideration of a variation I must assess the application focusing on the LEP provisions including the purpose of the standard in cl 6.1 and the mechanism for a variation in cl 4.6. I note at cl 1.9, certain State Environmental Planning Policies to not apply, including SEPP 1, nonetheless, cl 4.6 as in paragraph 12 above requires a similar approach to vary a standard with the objectives of the clause to provide for flexibility, and to achieve better outcomes by allowing flexibility in particular circumstances. 49On the question as to whether the development standard is "unreasonable or unnecessary in the circumstances of the case" Mr Vescio states that attempts have been made to acquire the adjoining property at number 4, and 2A/2B. In Mr Vescio 's opinion "the proposal is not an over development, and does not crowd the site with buildings, rather the buildings are subservient to the landscape. If the site was amalgamated with properties to the west a consolidated site could contain a building with a much greater floorspace ratio and a height of 17.5 m, presenting greater bulk and mass ... Given that the site is located at a zone interface, and adjoining a well-established lower scale development, a smaller frontage, with hence smaller building in footprint and volume provides a respectful and sympathetic transition between the lower density and higher density". I agree with Mr Olsson's Statement of evidence that "the existing character of the area is better maintained by the erection of individual developments, which allows for greater landscape curtilage". Mr Vescio states that "the variation to the 30 m standard better fulfils the planning objective of maintaining the character of the area as opposed to a scenario of an amalgamated site". The Council does not contend that the proposal will isolate the adjoining R4 land to the west. 50The objectives or purpose of the 30 m street frontage development standard in cl 6.1 is "to provide, for the orderly and economic development of residential land, while maintaining the local character". In my assessment these objectives are satisfied, and I am persuaded by the evidence of the applicant. I accept that the proposal for the development of this site provides not only a desirable transition but a better outcome for this site in the context of the Pemberley Grove seniors development and the future and current dwelling on the high density R4 sites to the west. I do not accept the respondent's expert evidence that "the narrow frontage is not wide enough for the majority of units to address the street" because for example for a 30 m site frontage and 60 m in depth with a site area of 1800 m, it is highly unlikely to result in a development where the majority of units address the street. Furthermore the DCP only requires "at least one dwelling to address the street" and the proposal has two dwellings. 51In my assessment I accept the applicant's experts evidence and the proposed development is orderly and economic in the context of the site being at a zone interface where the maximum density is not always achievable, and the proposal provides an appropriate built form and transition. Furthermore as required by cl4.6 (4)(ii) the proposal is consistent with the objectives of the zone set out above to provide housing needs of the community, and a variety of housing types within a high-density residential environment. Furthermore, the development of this site will not isolate or prejudice the orderly and economic development of the R4 sites to the west. 52In terms of clause 4.6(5) I am also satisfied that contravention of the 30 m standard does not raise any matter of significance for state or regional environmental planning and public benefit of maintaining the standards is not undermined in the circumstances of this case. And there are no other matters requiring my consideration before allowing the standard to be varied. 53Pursuant to the provisions of cl 4.6(3) I am satisfied the request for variation of the 30m frontage is justified and (a) "compliance with the development standard is unreasonable or unnecessary in the circumstances of this case", and (b) "there are sufficient environmental planning grounds to justify contravening the development standard". The request for variation I am satisfied is well founded on the evidence to the Court and should be allowed. 54In some respects my consideration of the variation to the 30m frontage standard coincides with my overall merits assessment of the application and I accept Mr Olsson's evidence that the built form not only provides for an appropriate transition, but it also provides a good level of amenity for future occupants of the development and for adjoining properties. The requirement of the development control plan for buildings to be oriented to optimise the northern aspect must be considered in the context of a holistic reading of the DCP and its provisions. I am satisfied that the solar access for units with dual access to the east and west is an appropriate outcome and achieves more than satisfactory choice of solar access. This dual orientation also provides for cross ventilation and the depth of units meets the rules of thumb of the residential flat design code . 55The second contention raised by the council is inadequate landscaping and impacts on trees. During the proceedings, the landscape experts and the applicant's arborists provided concurrent evidence and the deep soil area landscaping is calculated at some 34% of the site and this satisfies the 30% standard contained within the town centre's LEP . For the front setback area, the deep soil area in use 55.6%. I am satisfied that with the details now provided to the Court that the proposal will sit within a garden setting with canopy trees and other levels of landscaping consistent with the character of the area. In my assessment of the evidence the setbacks to all boundaries provide appropriate deep soil zones and levels to support the desired landscape outcome required by the DCP set out in paragraphs 29 - 32 above. The presentation of the building to the street will be within a landscaped setting to filter the view of the proposal and provide canopy trees, Angophora Costata and Manchurian pear, to make a positive contribution to the streetscape. The deodorus will also continue to make a contribution to the canopy of the locality and appropriate conditions are accepted by the applicant for its retention. 56The contention raised by the council about the loss of amenity for adjoining properties that is Pemberley Grove at no.8 and the dwelling house at number 4 Shinfield Avenue I have carefully assessed with the benefit of the evidence. The relative levels of the adjoining dwellings in Pemberley Grove and their open space areas and those of the proposal in terms of maximum height, between 9.5 and 10 m including where the basement protrudes, the design of the terraces and privacy mechanisms and with the distance separation I am satisfied will not create unreasonable impacts and the built form of a multi-unit town house development provides an appropriate relationship for both the future residents of the proposal and the existing residents of No.8. Similarly I am satisfied that the proposed built form provides for the maintenance of amenity for the existing dwelling at No.4 and it will provide an appropriate transition to the site when redeveloped. Furthermore while not relied on to provide privacy at the same time the side boundary landscaping will provide a consistent garden setting to the benefit of all properties. 57The east-west orientation of eight of the dwellings does not represent a gun barrel development and the length of the elevations in the circumstances of this case is an acceptable resolution that does not create adverse impacts on the neighbours or streetscape. The 66m length would be difficult to perceive and is well articulated and modulated and has appropriate landscaped setbacks. The built form also provides for a good neighbourly development having regard to its context without adverse impacts. 58The contention raised about poor amenity for future residents, refers to insufficient common open space and a lack of soft landscaping within private courtyards/terraces. I accept the applicant's evidence that the private open space for each of the dwellings provides a useful size and area within a landscaped setting where the built form does not dominate. The issue of disabled access is resolved by the condition that requires a lift to be provided when constructed and an adjustment to levels for access and paths. 59I have made the DCP guidelines a fundamental focus for my merits assessment of the elements. The structure of the DCP is that outcomes are to be achieved with the design controls the preferred way, however, the controls focus on building performance -"functionality, form, layout, sustainability and residential amenity". For the question of solar access I am satisfied that the development receives adequate solar access and the experts agreed the 70% rule of thumb in the RFDC is the appropriate test. The dual orientation as opposed to a northerly aspect in the circumstances of this case provides for an appropriate outcome. Dwellings 1, 2, and 7 will receive 2 hours and the remainder will receive 3 hours or more and all receive solar access to open space areas. 60The council raised the contention that the proposed development would have a detrimental impact upon the streetscape because of insufficient landscaping in the front setback area to minimise bulk and scale and a basement encroachment into the front setback area, together with a passing bay that would reduce the amount of landscaping within the front setback to screen the development from the public domain. As above I have concluded that the landscaping is appropriate and satisfies the outcomes. 61In my assessment the encroachment of the basement in the front and side setbacks will not impede the desired outcome of a development in a garden landscaped setting with more than the required space for and number of canopy trees. The passing bay together with the side driveway to basement parking will not dominate in the overall landscaped presentation and would not be a reason for refusal. The basement parking also satisfies the DCP so garaging does not dominate the streetscape. 62The issue of contaminated land is resolved by a condition of consent. 63For contention 7 the only remaining matter not dealt with above is the swale proposed and the applicant tendered a letter from an engineer that there will be no flooding of the western courtyards and this is not contested by the respondent. 64The contention of insufficient information and unsatisfactory plans has been addressed through further information and plan details and landscape specifications. I am satisfied on the basis of all the evidence to the Court that the proposed development has been well resolved. 65Of the objectors concerns I appreciate that residents will not always embrace change but the role of the Court is to assess a development proposal in the context of the statutory planning controls and guidelines and in my assessment above I have determined that the proposal is consistent with the Town Centre LEP and zone objectives and the desired outcomes expressed in the DCP. 66In my overall merits assessment the proposal before the court is well designed and warrants approval. The built form is appropriate for this site with a zone boundary interface and the proposal provides appropriate amenity for future and adjoining residents.

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Cases Cited (2)