Masad v Ku-ring-gai C

Environmental Planning and Assessment Act 1979 Ku-ring-gai Planning Scheme Ordinance LEGISLATION CITED: State Environmental Planning Policy 53 State Environmental Planning Policy 5

GPV No 5 (Wombarra) Pty Limited v Wollongong City Council [2003] NSWLEC 268; CASES CITED: Project Venture Developments v Pittwater Council [2005] NSWLEC 191

DATES OF HEARING: 4/08/2005 EX TEMPORE JUDGMENT DATE : 08/04/2005

APPLICANT Mr J. Hones, solicitor of Hones Lawyers

RESPONDENT Mr B. Tobin, solicitor of Abbott Tout

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 This is appeal against the refusal by Ku-ring-gai Council (council) of a Development Application for an attached dual occupancy development at 1 Canoon Road, Turramurra (the site) under State Environmental Planning Policy No 53 (SEPP 53). 2 The site, its context and details of the application are contained in the Statement of Basic Facts. I carried out an inspection of the site and surrounding area and heard evidence from residents and from Ms K Gordon, the Court appointed planning expert, and Mr I Glendenning, the applicant's town planner. 3 The main concerns of the residents related to removal of asbestos, drainage, privacy impact, the height and bulk of the development and streetscape impact. 4 The asbestos removal has been dealt with by conditions of consent. 5 The drainage issue relates to the requirement for an easement to be obtained either over an existing easement or a downstream property. The parties propose a deferred commencement consent to enable an easement to be obtained, which I find acceptable. 6 The owner of No. 193 Kissing Point Road was concerned about overlooking. I accept Ms Gordon's evidence that the privacy impacts to this property are satisfactory as the site is lower than No 193 and the proposed windows are placed to avoid direct overlooking. The proposed condition to lower the paving area also minimises privacy impacts to this adjoining property. 7 The owners to the properties to the rear, Nos. 12 and 14 Parkinson Avenue were also concerned about overlooking. I accept the evidence of the experts that this is reasonable due to the distance between these properties and the site being some 14.4 m from the end of the proposed paving to the common boundary of No.14 and further to No.12. 8 The upper floor of the proposal has bedroom windows facing Nos 12 and 14, but obscure glazing is proposed to the bottom of these windows which will prevent overlooking. From the lower level and the paved area, the existing screening and fence limit the potential for overlooking and the planting will be further reinforced. The site is at a higher level to these properties and there will be a degree of overlooking but this is little different to the current arrangement or to what is reasonably to be expected in a residential environment.

9 In relation to oral privacy, normal use of the proposal for residential purposes should not result in noise impacts beyond those reasonably to be expected in a residential environment.

10 There will be an overshadowing impact to No. 3 Canoon Road, to the covered outdoor area in the morning mid-winter period. I am satisfied that the impact is what would result from only a single storey development and a boundary fence. It is therefore not an unreasonable impact.

11 The residents and Ms Gordon were concerned about the impact of the proposal on the streetscape. The two main issues of concern were its two-storey appearance and its setback from the street. The requirements of SEPP 53 are relevant in addressing this issue. Cl 32(a) of SEPP 53 requires that adequate regard should be given to whether the development contributes to an attractive residential environment with clear character and identity. Cl 32(h) of SEPP 53 addresses visual bulk and residential character and provides that developments should adopt building heights at the street frontage that are compatible in scale with adjacent development.

the Canoon Road streetscape in the vicinity of the site is predominantly single storey at the street frontage with dwellings appearing to become elevated or two-storey at the rear through use of the fall in topography. It is, however, acknowledged that a two storey building exists at No. 6 Canoon Road, though this building is uncharacteristic in design, bulk and scale. The characteristic roof form is a simple pitched roof with the main ridge predominantly running parallel with the front boundary, with some small gable elements in some cases. The streetscape elements of low front fences, landscaping and mature trees and/or trees in front yard identified for the 1945-1968 visual character category are characteristic in the streetscape. 13 From the view I note that there are other houses in the street that have had second storey additions and, while the buildings are generally single storey, there is no predominant architectural style or consistency of appearance.

14 In relation to existing setbacks Ms Gordon states that:

The setbacks to the main building line on the low side of Canoon Road are relatively consistent at approximately 8 m. Exceptions to this include No. 5 Canoon Road, which is further set back and has a single garage forward of its building line and No. 9 Canoon Road, which is set back further again. 15 The site is on the corner of Kissing Point Road but in Ms Gordon's opinion, less regard should be given to the setback of the adjoining property, No. 193 Kissing Point Road, in determining an appropriate setback for the proposal.

16 Ms Gordon considered the proposed setback of 13.5 m uncharacteristic of the area, however, she considered that if the proposed carport were changed to a garage and the hardstand area to the south deleted that the setback relationship would be improved. I consider that with this change the setback is acceptable. The proposed setback of the south-eastern corner relates to the setback of No. 193 Kissing Point Road and as a corner site it is appropriate that the proposal forms a transition between the setback of this building and other buildings in Canoon Road.

17 The redesign of the carport, especially if this includes windows to the southern façade, will give the appearance of a single storey element facing the street and reduces the setback. The setback of the garage is 7.5 m and is therefore compatible with the setback of other buildings in the street.

18 While the predominant height of houses is single storey I do not interpret the requirement of SEPP 53 to be that for a proposal to be compatible it must also be single-storey. The scale difference between a single storey and two storey house is not such to render them incompatible and it is a normal relationship to be found in low density residential areas. I note that this was the opinion held by Senior Commissioner Roseth in GPV No 5 (Wombarra) Pty Limited v Wollongong City Council [2003] NSWLEC 268 where at par 15 he states:

The first principle is that buildings in a SEPP 5 development do not have to be single storey to be compatible with the streetscape even where most buildings are single storey. This principle does not apply to conservation areas where single storey dwellings are likely to be the major reason for their conservation. 19 The Senior Commissioner's comment was in relation to a SEPP 5 development but I think it is equally applicable to a SEPP 53 development. 20 I accept Mr Hones' submission that to be compatible does not mean that development needs to be the same. This is consistent with the principle stated by Senior Commissioner Roseth in Project Venture Developments v Pittwater Council [2005] NSWLEC 191.

21 I therefore would not regard the proposal as being incompatible on the basis that it appears as two storeys from the street, particularly as the controls in Ku-ring-gai Planning Scheme Ordinance (KPSO) permit two-storey development to a height of 8 m. Although not applicable to a dual occupancy, the development complies with this height limit.

22 What is important to assess is not purely whether the proposal is two storeys but whether the height, bulk and amenity impacts are consistent with a two storey development envisaged for the area under the planning controls. As stated above the height meets the height control in KPSO and, while the roof form is complex, I do not think that this adds materially to the bulk of the dwelling. The setback of the upper level from the ground level also assists in reducing the bulk of the development. The amount of landscaping proposed will enable the building to be viewed within a landscaped setting and is consistent with the character of the area.

23 I accept that even though this is a dual occupancy development, its height, bulk and impact on amenity and the amount of landscaping would be similar to that of a two storey development permissible under KPSO and, while different to the predominant single storey character, is compatible.

24 The only other issue is the setback of the upper level on the western side. I accept Ms Gordon's evidence that this setback does not raise any unacceptable privacy or overshadowing impacts, however, it is feasible to reduce its bulk where it is in close proximity and visible from the covered area of No. 5 Canoon Road and thereby reduce its impact. The applicant has agreed that this can be done and should be incorporated into a condition.

25 The orders of the Court are therefore: 1. The appeal is upheld.

2. The Development Application to demolish the existing house and construct a two-storey attached dual occupancy development at No. 1 Canoon Road, Turramurra is approved subject to the conditions in Annexure A.
3. Exhibits, except exhibits 2, 3, 4, A and B may be returned.
4. No order as to costs.

      Annelise Tuor
      Commissioner of the Court
      ljr

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