Northeast Homes Pty Limited v Ku-ring-gai Council

The application cannot be supported by Landscape Services due to;

• non-compliance with deep soil landscaping areas as defined by the LEP;
• minimal setbacks, particularly to the Pacific Highway; and
• lack of Sydney Bluegum High Forest plant species.

20 On 11 April 2005, the applicant was advised of the landscape officer's concerns, and amended landscape plans were received 19 May 2005. The council officers remain of the view that the amendments do not satisfactorily address the issues raised. However, during the hearing the deep soil landscaping was conditioned to comply with the 50% standard under the KPSO as amended by LEP194. 21 On 11 May 2005, the council's development engineer considered the submitted information was unsatisfactory. 22 On 19 May 2005, the council requested additional geotechnical information including a borehole report to assess the capability of the clayey foundation material to structurally support the development. The council also sought information as to the impact of excavation on Trees Nos 3, 8, 25, 34 and 36. At the time of the filing of the appeal this information had not been provided. 23 Also on 19 May 2005, the council's urban design consultant provided a report under State Environmental Planning Policy No 65, (SEPP65). This report concluded that the proposal poorly relates to the future medium density context. It drew attention to the fact that the height, scale and setbacks of the proposal would not comply with DCP55 and this would result in an unacceptable scale and bulk. The report states: "The built, form is inconsistent, as the facades and ground floor plan contain a range or curves, angles and stepped walls which have little regularity and do not relate well one to the other. Relationships should be more developed between parts with similar forms and proportions." Another concern of this consultant was that the setbacks would not provide sufficient curtilage for landscaping and the internal amenity was poor. 24 On 14 June 2005 officers of the council met with the applicant to discuss the project. The council's decision 25 When the appeal was filed the council had not determined the development application and thus the appeal is a deemed refusal. The council has since formally refused the development application. The hearing 26 The appeal was filed on 7 July 2005. 27 At the hearing the court received evidence on behalf of the respondent council from: · Ms N Richter, Executive Planner, Ku-ring-gai Council; · Mr R Olsson, consultant architect; · Mr G Bird, Landscape Development Officer, Ku-ring-gai Council, and · Mr and Mrs Smythe, residents of No 5 Womerah Street. 28 On behalf of the applicant evidence was given by: · Mr J D Chesterman, consultant architect and urban designer; · Mr A Minto, consultant town planner. The issues 29 On 23 August 2005 the council filed a statement of issues. 1 Streetscape and Visual Impact: The proposed front and side setbacks and the design of the front elevation of the building, result in an undue imposition of built form on the streetscape and on surrounding properties. 2 DCP 55 specifies a street boundary setback of between 10-12 metres with no more than 40% of the front setback zone being occupied by the building footprint. The development achieves a front setback of between 2-6 metres at basement level and between 5-11 metres at ground level along the Pacific Highway frontage. The building footprint occupies 55% of the front setback whereas no more than 40% is required under DPC 55. Front courtyards also encroach on the 8-11 metre setback requirement. This limits Deep Soil Zones and the potential for tall tree canopy planting as required by LEP 194 and DCP 55. Satisfactory landscape screening cannot be achieved within the Pacific Highway setback to mitigate adverse amenity impacts, screen the building from the street and integrate the development with its surrounds. (LEP194 clause 25D (2); DCP 55 clause 4.3, control C 1). 3 The development has a 6 metre setback along the Womerah Street frontage whereas between 10-12 metres is required (from a street boundary) under DCP 55. Insufficient screening is provided within this setback. The length, height and form of the building will result in unacceptable bulk and affect the visual amenity of the Residential 2(c2) zoning located opposite on Womerah Street. (LEP194 clause 25D(2); DCP 55 clause 4.3 control C1, clause 4.4 control C3). 4 The development does not consistently comply with the 6 metre setback along the north-western site boundary. This prevents the establishment of a tall tree canopy within Deep Soil Zones as required by LEP194. The non-compliance will adversely impact on the amenity of the existing dwelling and any development in the future on the north-western adjoining site. (LEP194, clause 25D(2); DCP 55 clause 4.3, control C1). 5 The width of the building along Womerah Street is 47 metres whereas DCP 55 requires a maximum width of 36 metres along any street elevation. The large expanse of building and lack of architectural relief provided across the facade will result in significant visual impact for the Womerah Street public domain and streetscape. The bulk of the building will particularly affect properties within the Residential 2(c2) zone, opposite on Womerah Avenue. (DCP 55, clause 4.4, control C3 and C4). 6 The scale of the development is unacceptable and relates poorly to the surrounding pattern of development and the desired future character of the area. The building alignments breach DCP 55 in relation to street setbacks and the built form and façade treatment (curves, angles and stepped walls) is inconsistent and irregular. The proposal does not provide an appropriate response to the existing lower density housing in the area. (DCP 55, clause 4.4, objectives 03 and 04 and controls C3 and C4). 7 The proposed materials and treatment for the facades is inconsistent with the requirements of SEPP 65. The development detracts from the natural setting, is excessive in scale and relates poorly to the existing and desired future built form of Pacific Highway. (DCP 55, Part 2, controls E11, E12 and E16). 8 The development exceeds the 4 storey height control at the north-eastern corner where the basement appears to exceed 1.2 metres above natural ground level. The scale of the building is unacceptable given the non-compliance with setback controls and the lack of opportunity for landscaping. A SEPP 1 objection is required for this departure from the standards. (LEP194, clause 251(5)). 9 Landscape: The Deep Soil Zone provided appears to be 43%, rather than the 50% as suggested within the application. The plan includes areas of access and pathways in the calculation, which are excluded under the definition of deep soil landscaping. A SEPP 1 objection is required for this departure from the standards. (LEP194, clause 25D(b) and (f) and clause 251(2). 10 Due to the non-compliance with setback controls along each of the three site boundaries, insufficient opportunity is provided for deep soil landscaping and the establishment of tall canopy trees. This has the effect of unduly emphasising the building form within the streetscape and surrounding area and is inconsistent with the objectives of LEP 194. (LEP194, clause 251(2)(a) and (c). 11 Residential Amenity: The proposed development fails to provide for adequate open space with dimensions in accordance with DCP 55. In particular, Unit Nos 2, 3, 8, 9, 12 and 13 have insufficient terrace or balcony dimensions. (DCP 55, clause 4.5.5, control C1, C2). 12 DCP 55 requires that no single aspect units shall have a southern orientation. Unit No 2 has a single aspect southern orientation. (DCP 55, clause 4.5.1, control C4). 13 Inadequate Information: The following information was requested for the Applicant but has not been provided: 13.1 A borehole report and details as to its location on the site plan; 13.2 Clarification as to whether the clays beneath the site are unsupported at a near vertical angle; and 13.3 The impact of the excavation proposed (up to 5 metres deep) on tree Nos 34, 8 and 36 along the Pacific Highway frontage and tree Nos 3 and 25 along the Womerah Street frontage. 14 Objections: Issues raised by the objectors, including bulk, scale and landscaping. 15 Conditions: The Respondent submits that none of the issues can be resolved by conditions of consent in the circumstances of the case. 30 Streetscape and visual impact emerged as the salient issues: The evidence and findings Streetscape and visual impact 31 The parties agreed that the proposal complies in every respect with the development standards for medium-density housing under the KPSO as recently amended by LEP194. However, the proposal does not comply with the setback requirements of the DCP55 that would require a setback between 10m and 12m from both the Pacific Highway and Womerah Street. The applicant points out that were the building footprint defined by these front setbacks and a side setback of 6m the coverage would be around 21% and under the KPSO the allowable coverage is 35%. Thus the applicant comes to the appeal seeking to convince the Court that the setback and landscaping objectives of DCP55 can be met by providing lesser setbacks. Mr Kondilios also submitted that there may be an inconsistency between the provisions of the KPSO and DCP55 in regard to setbacks. 32 It is noted that although there is a tension between the KPSO and DCP55 in regard to front setbacks and building coverage, the proposal, when compared to development of 35% coverage in the same zone on rectangular sites nearby, would provide a similar extent of deep soil landscaping as under the DCP55. It is proposed to provide 50% of the site area as deep soil landscaping as is required under DCP55. So although the proposed setbacks would be less than required under DCP55, the landscaped area is not so constrained. This is because the triangular land has proportionately longer street frontages and perimeter compared with those attributes of a rectangular parcel of land. 33 An advantage of a parcel of land with a long street frontage is that the private landscaping in the front setback might be supplemented by planting in the council verge for a longer distance. Large endemic tree species planted in the front setback would have space for the canopy to extend over both the public and private land. Also the existing large trees in the council's verge that add to the ambiance of the area would have space to grow and in time would be augmented by the proposed landscaping. 34 Mr Chesterman, an architect, who was engaged by the applicant and who with Mr Minto, prepared a position statement, dated 20 September 2005, referred to this point. 35 Mr Chesterman considered "…the character of Womerah Street derives from high canopy of trees". He said that the vegetation comprised scattered tall trees in private gardens, and lower level vegetation in the public areas. He pointed to the fact that "…the existing house [on the Womerah Street frontage of the land is] almost as high as the proposal, setback 1.5m and is almost invisible [when viewed from the street]". 36 He said, …it is possible to replace the lower vegetation to break up the visual bulk [of the proposal]. [It would be possible to] see parts of it. [However, there would be] room in the 6m-setback [for screening vegetation] and the whole space is available for that. At the NE end, the building is setback 8m and there is more space for vegetation to break up the view of it". 37 The upper floor, he said, …is setback and only three storeys would be visible from the deeper end of Womerah Street. The building is setback a long way from the corner [of the land]. As you approach the corner heading north, there is adequate space in there and there would be vegetation to hide the 2.5 storey building. Enough room to ensure the building is not overbearing. The façade is modelled and slightly longer than the 36m allowed, and as it is setback at the ends, it would not read as more than 36m. [It is also] broken into two parts by a recessed entrance lift tower of different material and that modulates the building. [As a result it would be] remarkably similar to the p 33 DCP requirements. In my view the built form and articulation, [is satisfactory]. 38 Mr R Olsson, for the council said, I take a different view of the site. Pacific Highway is a ridge road and the land falls away down the side street. The overall fall on the site is around 4.5m or around 1.5 levels in height. [It is] a good principle is to step buildings in relation to the topography. This has been done elsewhere. On this, the building is entirely flat and does not relate [to the topography]. [As a result] the NE corner [of the proposal] is higher. At the corner of Womerah Street the building is set at NGL and at the NE end it is 1m out of the ground. The ground falls away considerably and 2.5m plus 1m gives a 3.5m visual difference in height. From the model [it is possible to see that the proposed] building is not setback 8m from the front or the side boundary. From the front it is 6m and the balcony projects and emphasises the corner. Also the car park is cut in. This is the prominent part of the site [and in close proximity to the] adjoining the detached houses in the 2(d3) zoned land next door. This is the most visible when looking from Womerah Street.