16 Mr Levitsky said that he was now content with the amended proposal that had deleted a barbecue and shade structure and the tennis court, and an aboveground detention basin that would have removed most of the existing mature trees adjoining his boundary. He had been concerned about noise of activity and loss of vegetation adjoining his living room and outdoor living spaces.
17 In the amended proposal, most of the mature trees in the transmission easement were to be retained and the area improved as a private parkland with removal of weeds and underbrush and selective removal of trees and then supplementary plantings and recreational pathways with the barbecue area relocated away from the neighbours.
18 Mr Baker also said he would be content with the amended scheme so long as any new heavy shade trees were kept away from his boundary, as he valued solar access to his backyard and house. The site being on his north side, he already had an amount of shade from the existing trees.
19 The revised landscape plan in Exhibit C was hand annotated to change species and to note the trees near Mr Baker's and Mr Levitsky's boundaries to be removed or kept. There was consultation with Mr Baker during the view on-site and the other neighbours adjoining, concerning the existing trees.
20 Also, the access pathway to the villas that fronted Baker Street was a concern to the council landscape experts. The path endangered some existing trees nominated for retention, and some of the existing trees were not shown on the plans. A detailed survey of existing trees was tendered during the hearing and discussions proceeded between the landscape experts. The landscape plan was marked again, to relocate the path and to construct it as a raised timber deck pathway to minimise damage to tree roots. Also a front fence is now included with gates to the access pathway. This will prevent persons creating shortcuts through the vegetation.
21 Still in regard to landscaping, the neighbours at 3 Ludmila were concerned about potential adverse effects on their own turpentine trees along the common boundary and with the retention of some trees on-site. These were discussed and it was agreed the existing trees on No. 3 would not be affected and appropriate trees on the subject site would and could be retained. One exception is tree 63. It is on the common boundary with 3 Ludmila, just within the subject property. However it is a Bunya pine, a huge tree at first glance looking like a Norfolk pine. Its danger is that it grows huge seed pods about the size of a football and weighing several kilos. When they drop from high up, they are easily capable of killing an unlucky person below. It was agreed the tree must be removed.
22 No issue was raised in regard to health of persons living near the electrical easement. Integral Energy had advised in Exhibit 8 of conditions to be imposed on any consent to ensure safety. The applicant accepted them.
23 In regard to traffic, the revised plan for the single entry drive is now satisfactory to the councils. The concerns about safety in the high levels of traffic during peak hour on Baker Street were mentioned by the nearby residents. The proposal would add about five vehicles per hour at peak, compared to an existing 588 vehicles per hour at peak. The traffic engineering unit evidence is that the safety of the driveway at its entry to Baker Street and the low site generation of traffic, made the proposal acceptable and would have no discernible effect on existing traffic and safety conditions.
24 The observation could be made that if the council feared Baker Street is already exceeding its maximum environmental capacity, this fact should have been obvious at the time of rezoning the land along Baker Street for a change from single detached dwellings to medium density residential.
25 Appropriate road widening could have been incorporated in a development control plan to be implemented as redevelopment occurred. Inquiry of the respondent during the hearing showed that no such road widening is contemplated by the council. It is noted traffic engineering capacity of the road is not exceeded. It seems to me this aspect could not justify refusal of the proposal. If council is indeed concerned about Baker Street traffic, appropriate steps should be taken forthwith.
26 In regard to fears of overlooking of 3 and 5 Ludmila from the private courtyards of the four villas adjoining the common boundary, it is noted there is already a high boundary fence to No. 5 in particular that would prevent overlooking. Added to this, the courtyards are set back 2 m from the fence line with screen planting and the overland catchment drain between. The relative levels of the courtyards and a person's eye height compared to the top of the fence indicated privacy would be retained for the neighbours.
27 Number 5 has a concern for overland flows increasing from the site as it is the downhill property and currently has significant soakage during rains. They felt any stormwater easement should follow the natural landfall through their property and Nos. 2 and 4 Sun Valley Place to reduce that impact. The applicant's design revealed that all overland flows and roof stormwater would be collected up to the 1 in 100 year design storm and diverted to the council drains. This would mean far less soakage for No. 5 than at present, but it would mean in a storm greater than one in one hundred years, overland flow would occur down the natural fall of the land. This meets the normal authority stormwater management requirements.
28 The other particular concern of Nos. 3 and 5 Ludmila is the proposal for an easement along their common boundary to take the pipe for the 1 in 100 year discharge. The council posed a deferred commencement condition to require the establishment of the easement prior to any consent being activated. If that is obtained then council's only other requirement is to enlarge the existing pipe across the Ludmila cul-de-sac to a 375 mm size to take the 1 in 100 year flows.
29 Negotiations on the easement with Nos. 3 and 5 had not been successful. The applicant may or may not obtain an easement through Court action or further negotiation.
30 Some of the practical difficulties are that No. 5 is a new house and is built very close to the relevant boundary and is excavated about 1 m below ground at that point. The construction of the easement would mean demolition of a pathway and retaining wall and potentially in heavy rain, a surcharge close to the house. The owners of No. 5 were quite unhappy about the construction and the aesthetics and the potential for surcharge onto their land and possible flooding of their home.
31 Number 3 is concerned about potential underpinning or instability of their brick and concrete garage and driveway and the aesthetics of the proposal. In looking at the engineering drawings in Exhibit D it became obvious that although the proposed easement had a 375 mm pipe to take normal flows, it had above it an open channel to allow water to escape in the event of a pipe blockage. This is a normal engineering design.
32 However, the "typical drainage easement details" cross-section on drawing 04473CO4 Issue 3 showed there was reason for 5 Ludmila Closes' concern about potential flooding. The channel is shown as open on their side, so water surcharges would come into the excavated area around their house. Being a slab on ground construction, there is not much free board. There is no evidence to show any surcharges into this excavated area could get away before it built up enough to enter the house. Also the route of any surcharge would be generally overland flow across the yard space around the house of No. 5 instead of across the cul-de-sac or via the natural land form previously referred to through the north-east corner of No. 5 and down through Nos. 2 and 4 Sun Valley Place. The applicant agreed the design of the drain needed revision.
33 The residents of Ludmila Close noted that in the event of the easement pipe blocking in the cul-de-sac, the surcharge would be through the grate outside No. 5, and the existing situation in heavy rain would be worsened. The design of the cul-de-sac did not direct surface flows to the 2nd down stream drain grate on the opposite side of the road. In heavy rain it currently ponded outside 7 Ludmila and eventually overflowed down its driveway and into its garage. Although this had been complained of to the council for many years, nothing had been done. It would be worsened by the proposal.
34 In regard to the shadow impacts, they would be quite minimal and acceptable in regard to the neighbours. With the deletion of the attic bedrooms from the original design, the applicant had incorporated large clerestorey windows to the living rooms and kitchens of each unit that would ensure each got excellent northern sun into their interiors.
35 The council had raised concern about solar access to the private courtyards of the villas. The updated shadow diagrams in Exhibit B showed the north-south rows of villas meant units A1-A5 would get full sun mid-winter to the courtyards between 9am and noon, and then progressively be shaded with half the courtyard in sun about 1pm and all in shade by just after 2 pm. The courtyards of units B1-B4 would commence to get sun at 10 am mid-winter, have full sun just before noon, and continue with full sun all afternoon.
36 The council noted that the shadow diagrams did not show the fence shadows of the courtyards that would reduce the areas of sun in the courtyards below those shown on the plans. The controls require 80% of the units to get sun to 50% of their courtyard area between 9 am and 3 pm on 21 June and the remaining 20% of units must get three hours of sun to 50% of their courtyard area between 9 am and 3 pm on 21 June. Forgetting the fences, only units A5 and B4 could comply with the 80% of units requirements, and the other seven units could get sun for about five hours to 50% of their courtyards, but not 6 hours. With the courtyard fences included, only units A5 and B4 could comply. The courtyards would have to be much larger to achieve compliance with the Development Control Plan. They already exceeded the minimum size of 25 sq m area, all of them being 40 sq m in area or larger. It is noted that the same controls on solar access to the courtyards require 1.8 m high courtyard fences for privacy.
37 Ms Tillett and Mr Goldsmith agreed that including the fence shadows in any assessment is unreasonable. Mr Goldsmith said even without the fence shadows, the requirements set a very high standard. Ms Tillett agreed it is a high standard, but council wanted that. The original officer report on the Development Control Plan said four hours of sun to 50% of the courtyard area and council increased it and is entitled to do so.
38 She agreed the power transmission easement was a major constraint on the site and probably resulted in the applicant having to squeeze the units and courtyards into the north end of the site.
39 Mr Goldsmith said a major benefit to the residents of the proposal is that the transmission easement being landscaped as parkland with a barbecue area and pathways. It has full sun all year and is accessible to all residents. A person can get sun at any time of the day there, if the sun in the courtyards is not enough at any time.
40 The remaining major issue is cl 43 of the Local Environmental Plan, that is similar in the draft Local Environmental Plan. It says in effect,
"a development cannot be approved if it renders an adjoining lot in the 2(a3) Zone incapable of being developed for villas because its site area is below the minimum 1000 sq m in cl 41."