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[2011] NSWLEC 1093
Land and Environment Court (NSW)
2010-12-15
Original judgment source is linked above.
Judgment 1The applicant in these proceedings is seeking to construct a multi unit development containing eleven town house style dwellings with twenty-three basement car parking spaces on the site known as 6 Shinfield Avenue St Ives. 2The council refused the development application and the applicant appealed to the Court under s97 of the Environmental Planning and Assessment Act. By way of background, this matter commenced as a conciliation conference onsite and this was subsequently terminated and the parties consented to me determining the appeal by way of a formal hearing under s34(4) of the Land and Environment Court Act. The parties agreed to the Court having regard to the s34 conciliation conference where an extensive site inspection was undertaken and the Court also heard from a number of resident objectors to the proposal. 3To the east of the site at No. 8 is a large seniors living development known as 'Pemberley Grove' that is an older townhouse style community title seniors living development. To the west of the site at No. 4 there is a detached single-storey dwelling on a large allotment of land and on the northern boundary there are commercial development sites with frontage to Mona Vale Road. To the northwest there is an existing service station that also has frontage to Mona Vale Road. The site is in close proximity to the St Ives town centre and the locality is characterised by a mix of existing commercial and retail development, detached residential dwellings, seniors living development and more recent apartment style and multi-unit development. The aerial photograph at Figure 1 shows the site in its context. 4The subject site has a frontage of 23.775 m Shinfield Avenue and a site area of 1942 sq m. The site has a cross fall on the front boundary of approximately 1.8 m and there is a fall of some 2 m through the centre of the site from the western to the eastern boundary. On the site there is a single-storey dwelling that is proposed to be demolished. The proposed development is shown in the site plan at figure 2 and the elevations in figures 3, 4, and 5.
Contentions 5The Respondent prepared a statement of contentions as follows:
Statutory planning framework 6The subject site is zoned high-density residential R4, under the Ku-ring-gai Local Environmental Plan (Town Centres) 2010. The particular aims of the LEP include, "(c) to provide a variety of housing choice within and adjacent to the centres." 7The consent authority under cl 2.3 must have regard to the objectives for development in a zone when determining a development application. The objectives of the R4 zone are: + to provide for the housing needs of the community within a high-density residential environment + to provide a variety of housing types within a high-density residential environment. 8In the R4 zone development that is permtited with consent includes: boarding houses; child-care centers; community facilities; dwelling houses; educational establishments; multi-dwelling housing; neighbourhood shops; places of public worship; residential flat buildings; seniors housing; and shop top housing. 9In the LEP cl 4.3 refers to the height of buildings map. For sites less than 1800 sq m, the maximum height is 11.5 m and for sites between 1800 and 2400 sq m, the maximum height is 14.5 m. 10The LEP floor space ratio provisions are contained in cl 4.4 and the objectives are: (a)to ensure that development density is appropriate for the scale of the different centres within the hierarchy of Ku-ring-gai town centres (b)to enable development with a built form that is compatible with the size of the name to be developed (c)to provide an appropriate correlation between the extent of any residential development and the environmental constraints of the site 11The accompanying floor space ratio map shows the subject site with an FSR of 1:1, while the adjoining site zoned R3 is 0.8:1. For a site within the R4 zone, where it has a site area less than 1800 sq m, the FSR is 0.8:1 and where it is between 1800 and 2400 sq m, the FSR is 1:1. 12Part 4 of the LEP at cl 4.6 contains 'principle development standards' provisions for exceptions to development standards: (1) The objectives of this clause are: (a)to provide an appropriate degree of flexibility in applying certain development standards to particular development, and to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Director-General has been obtained. (5) In deciding whether to grant concurrence, the Director-General must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Director-General before granting concurrence. 13Part 6 of the LEP contains additional local provisions and cl 6.1 has particular site requirements for multi-dwelling housing and residential flat buildings as follows: (1) The objective of this clause is to provide site requirements for development for the purposes of multi dwelling housing and residential flat buildings so as to provide for the orderly and economic development of residential land while maintaining the local character. (2) Despite any other provision of this Plan, development consent must not be granted for the erection of multi dwelling housing or a residential flat building on a lot in a residential zone unless the lot has one street frontage of at least: (a) if the area of the land is less than 1,800 square metres - 23 metres, or (b) if the area of the land is 1,800 square metres or more - 30 metres. (4) Despite subclause (2), development consent may be granted for the erection of multi dwelling housing or a residential flat building on a battle-axe lot in a residential zone even if the lot does not satisfy those street frontage requirements. 14The LEP contains a number of definitions and relevantly include: Building height means the vertical distance between ground level (existing) at any point to the highest point of the building, including plant and lift overruns, but excluding communication devices ... and the like. multi-dwelling housing means 3 or more dwellings (whether attached or detached) on one lot of land (not being an individual lot in a strata plan or community title scheme) each with access at ground level, but does not include a residential flat building. Landscape area means a part of the site used for growing plants, grasses and trees, but does not include any building, structure or hard paved area. 15The Ku-ring-gai Development Control Plan (Town Centres) 2010 contains specific building type controls and general development controls. 16The objectives of the DCP outline the outcomes that proposed developments are required to achieve. "In order to gain consent, developments need to demonstrate that they have fulfilled the relevant objectives for each element. The design principles illustrate how the objectives may be achieved. The principles are described in diagrammatic form as well as in text and are intended to be indicative rather than controls. The design controls demonstrate the preferred ways in which the objectives are to be achieved for improving site and building design. The controls focus on building performance -- functionality, form, layout, sustainability and residential amenity. Controls may be varied, provided that it can be demonstrated that the objectives for that particular element have been achieved. " 17The general aims of the DCP are as follows: (i) establish a future character for Ku-ring-gai's town centers. (iii) the provision of a range of building types, which provide for increased housing choice ... that contribute to a sustainable vibrant community. (iv) high-quality sustainable urban design and architectural design of buildings that have a good relationship with neighboring developments, the public domain and landscape qualities of the locality. (vi) the promotion of the principles of ecologically sustainable development, including water sensitive urban design, climate responsive building design, energy efficiency and selection/use of building materials. (vii) a high level of residential amenity in building design for the occupants of the building through daylight access, acoustic control, privacy protection, natural ventilation, passive security design, outdoor living, landscape design, indoor amenity and storage provision. (ix) buildings and landscaping that are designed for all age groups and degrees of mobility. 18Part 2A of the DCP contains provisions for St Ives Town Centre, and this allows an increase in commercial floor space of about 70% to cater for existing and future demand. 19Multi-dwelling housing provisions are contained in pt 3D, and for site layout the objectives are: (1)to ensure that all developments are sensitive to site attributes, such as streetscape character, existing vegetation and topography. (2)to achieve a high standard of amenity for future residents and neighbours. 20The controls include: (1)Site planning is to minimise as far as possible amenity impacts on neighbouring properties and on-site dwellings. (2)Gun barrel style developments, (with long rows of attached dwellings, long straight driveways and rows of uniform width garden courtyards) are not permitted. (3)At least one dwelling must address the street. (4)The preferred layouts for multi-dwelling housing developments are shown in diagrams. (For a site layout with 24 m frontage, shows three attached dwellings with frontage to the street and three dwellings in the rear portion of the site with three dwellings of the opposite orientation. That is, one facing the three dwellings to the front and a centre dwelling and a dwelling facing the rear boundary.) 21The building separation objectives include: (1)To ensure that new development is scaled to support the desired area character with appropriate massing and spacings between buildings. (2)To ensure a building configuration that protects and enhances visual and acoustic privacy for occupants and adjacent residents. (3)To provide building form and layout that minimises overshadowing of adjacent properties and open space. (4)To provide building configuration that facilitates the provision of usable open space, landscaping and view corridors. (5)To provide building form and layout that maximises view sharing. 22In the DCP the minimum separation up to the second storey is 3 m between non-habitable rooms and 6 m between rooms and balconies in all other cases. For the third storey, there is a 12 m between habitable rooms and balconies and 7 m between habitable room, balcony and non-habitable room and 3 m between non-habitable rooms. 23The building set back objectives of the DCP include: (1)To ensure buildings are set within a garden setting dominated by canopy trees which screen the buildings and soften the urban form to maintain the garden character of Ku-ring-gai. (2)To ensure adequate space between sites to enable effective landscaping and tree planting. (3)To ensure adequate separation between buildings on different sites for privacy, sun access, acoustic control and natural ventilation. (4)To provide a transition between certain zones. 24The setback controls to the street are a minimum of 10 m and for side and rear setbacks a minimum of 3 m from any side boundary and where dwellings address site boundaries, a setback must be at least 6 m. The minimum setback to the rear boundary is 6 m and basement car parking areas must be a minimum of 3 m from any side or rear boundary. 25The building setback controls also allow encroachment for ground floor private terraces/courtyards, with a minimum setback of 8 m from the primary street and 3 m from the rear boundary, to allow for deep soil planting within the common areas. 26Ground floor private terraces/courtyards may also encroach into the side setback, provided the deep soil landscaping requirements are met and no more than 15% of the total area of the street setback is to be occupied by private terraces/courtyards. Additional encroachments allow for eaves, sun shading devices, blades, fins and columns. 27The site coverage objectives are: (1)To ensure development is consistent with the desired future built and landscape character of the area. (2)To protect and improve the tree canopy within Ku-ring-gai. (3)To provide viable deep soil landscaping within residential developments. (4)To minimise impervious surfaces that generate stormwater run-off. 28The controls for multi-dwelling housing provides there must be a maximum site coverage for townhouse development of 40%. 29The objectives for deep soil landscaping include: (1)To provide consolidated deep soil zones in all residential development sites through careful planning and building design. (2)To provide landscaping is appropriate scale context of the development. (3)To provide landscaping that provides habitat for native indigenous plants and animals and contributes to biodiversity in the area. (4)To create high-quality landscaped areas through retention and/or planting of large and medium-sized trees. (5)To ensure landscaping that contributes to the garden character of the locality. (6)To promote landscaping that minimises water use. (7)To ensure that most of the deep soil landscaping is within common areas. 30The design controls are that multi-dwelling housing must have a minimum deep soil landscaping area of 30% of the site and where there is a street frontage of 30 m or less, then 50% of the front setback area is to be deep soil landscaping. The controls also require adequate space for tree and screen planting, and deep soil zones are to be provided to all side boundaries with a minimum width of 3 m along the rear boundary within the common area. 31Sub clause 4 requires a maximum of one-third of the principal private open space area to be counted as deep soil landscaping and to maximise deep soil landscaping areas, driveways and vehicle turning areas are not to dominate the street setback zone. 32The tree replenishment provision requires a minimum number of tall trees capable of attaining a mature height of at least 13 m on shale, transitional soils and 10 m on sandstone derived soils. For sites over 1800 sq m, the number of tall trees is calculated at the rate of 1 per 300 sq m. And at least two canopy trees must be provided in the street setback area. 33The objectives for building facades include: (1)To ensure development demonstrates individual identity for each dwelling. (2)To promote buildings of high architectural quality that contribute to the desired local character. (3)To create building facades that reduce the bulk and scale of the building. (4)To create building facades are environmentally responsive. (5)To integrate building elements into the overall building form and facade design. (6)To ensure that building facade design contributes to the safety of the public domain. 34The controls for attached dwellings must comply with the following: (iv)break buildings into separate blocks, with maximum length of 24 m (v)where external walls along with than 12 m, the building alignment must be stepped by a minimum 0.3 m articulation in the facade. The controls for building facades also requires that they be modulated and articulated with wall planes varying in debt by not less than 0.6 m and facades must be designed to respond to solar access with eaves and louvers 35The provisions for building entries contain objectives: (1)To ensure the building entry is a clear and identifiable element in the street and is accessible to all. (2)To ensure the building entry contributes positively to the streetscape and building facade design. The controls include that building access shall be in accordance with the Disability Discrimination Act 1992 and all buildings must address the street with at least one entry, directly accessible and visible from the street and this must be integrated with the building design. 36The DCP contains provisions for private open space, to ensure that it is functional and integrated into the overall design and that it provides for passive surveillance of the street, while providing safety and visual privacy for residents. The controls provide that there is to be 35 sq m of private open space per dwelling at ground floor. The provisions for dwelling depth and room sizes, is to ensure the design provides adequate amenity for occupants, in terms of sun access and natural ventilation and to provide dwellings with well proportioned and functional rooms. 37The objectives for solar access are: (1)To ensure a high level of internal amenity for all occupants with direct access to daylight in all habitable rooms. (2)To minimise the negative impact of overshadowing on living areas and private and communal open space areas of neighbouring development. (3)To minimise the impact of development of existing solar collection devices. 38The controls include that buildings must be oriented to optimise the northern aspect and dwellings must receive a minimum of three hours direct sunlight to living rooms and adjacent private open spaces between 9 and 3 on 21 June. It is noted that shadows cast by trees and fences are excluded from this calculation. 39The objectives for vehicle access is that it is to provide well located and designed vehicle entrances that facilitate for pedestrian amenity and safety and the controls include: (1)Driveways must be designed to avoid a straight long gun barrel appearance, by using appropriate landscaping and variations in alignment. (2)Driveways must be located at least 3 m from any side boundary and be separated from the boundary by a continuous landscaped verge and screen planting. (3)Not more than one driveway may be established on any property with a front width of less than 20 m, not more than two driveways may be established on any other property. (4)On-site vehicle turning areas must be designed to permit turning in a single reversing movement. (5)Where a waste and recycling room is provided within the basement, the minimum finished ceiling height must be 2.6 m. 40The objectives for car parking provision are: (1)To provide adequate car parking for the buildings users and visitors. (2)To locate and design car parking, which is integrated with the site and building design. (3)To ensure that garage structures do not dominate the site or the streetscape. 41The controls for car parking design include: + multi-unit dwelling developments must provide on-site parking within basements wherever practicable, and to maximise landscaping area, basement car park areas must be under the building footprint + basement car parks must not project more than 1 m above existing ground level + wherever possible, direct access to the dwellings must be provided from basement car parks to entry, garages must be integrated within the building + the width of the garage visible from the street must not be greater than 6 m or more than 40% of the site frontage, whichever is the lesser + the design of the garage must be in keeping with the dwellings scale, form and design and be compatible with the streetscape.
Evidence 42When the Court met on site for a conciliation conference, a number of resident objectors attended. Their concerns can be summarised as an over development of the site that will generate more traffic. The residents are also concerned that the design of the development is uncharacteristic of the area and that it is inferior in terms of materials and finishes and it will have the appearance of a conglomeration of small boxes. Concern was also expressed that the peace and quiet of the street would be impacted with the noise from eleven townhouses. 43The council's bundle also contained four written submissions from the properties known as No's 2B, 3, 4 and 7 Shinfield Avenue St Ives. 44On behalf of the respondent council, evidence was given to the Court by Mrs Robin Pearson executive planner of council; Ms Jennifer Bautovich, consultant architect/town planner and Ms Tempe Beaven, landscape officer with Ku-ring-gai Council. For the applicant, evidence was given by Mr Joseph Vescio, consultant town planner; Mr Russell Olsson, architect and urban designer; Ms Jane Irwin landscape architect consultant; and Mr Russell Kingdom, arborist.
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.
Or ders 67Accordingly, based on my assessment above, the formal orders of the Court are: (1)The appeal in respect of the property known as 6 Shinfield Avenue St Ives is upheld. (2)The development application submitted to Ku-ring-gai Council and as amended for a multi-unit development comprised of eleven dwellings and 23 basement parking spaces is determined by the granting of consent, subject to the conditions in annexure 'A' (3)The exhibits are returned to the parties, with the exception of: 1, A, M, O and P. J S Murrell Commissioner of the Court Annexure One Shinfield Ave - Figure One Shinfield Ave - Figure Two Shinfield Ave - Figure Three Shinfield Ave - Figure Four Shinfield Ave - Figure Five 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. Decision last updated: 02 May 2011
Macri
Ku-ring-gai Council