Tenacity Investments v Ku-ring-gai Council

DATES OF HEARING: 21/03/2006, 22/03/2006, 04/04/2006 and 02/05/2006

Applicant: LEGAL REPRESENTATIVES: Mr J Robson, barrister instructed by Mr T Sattler of Sattler & Associates Respondent: Mr P Marincowitz, solicitor of Phillips Fox

JUDGMENT:

• 9 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11234 of 2005 Tenacity Investments Pty Ltd v Ku-ring-gai Council

JUDGMENT 1 Senior Commissioner: This is an appeal against the deemed refusal by Ku-ring-gai Council (the council) of an application to demolish the existing structures and erect four townhouses and a seven-level residential flat building on lots 1 and 2 DP 220159 (known as 2-4 Everton Street, Pymble) and lot 1 DP 21778 (known as 2 Pymble Avenue, Pymble).

The site 2 The site is L-shaped, with a total area of 2,921m2. The main part of the site falls steeply to the southwest, with a fall of about 20m. It is close to Pymble shopping centre and the railway station. To the northeast are apartment buildings with a frontage to Pacific Highway. Adjoining are No 4 Pymble Avenue, a one-to-two-storey house; No 6 Pymble Avenue, which adjoins for a short distance and contains a single-storey house; No 8 Pymble Avenue, a battleaxe block with a one-to-two-storey house; No 3 Livingstone Avenue, a dental clinic; and No 5 Livingstone Avenue, which is a new two-storey house. All the properties to the southwest are low-density houses and, with the exception of 4 Pymble Avenue and 5 Livingstone Avenue, are zoned for low density.

The proposal and its history 3 The applicant proposes to demolish the existing buildings on the site and to construct four townhouses on the 2 Pymble Avenue part of the site and a residential flat building containing seven levels over basement parking on the 2-4 Everton Street part. 4 The applicant lodged the development application in June 2005 and amended plans on 11 October 2005. On 20 October the applicant lodged an appeal with the Court against deemed refusal. Following notification, the council received a joint submission from six nearby residents as well as four separate submissions.

Relevant planning controls and policies 5 The Environmental Planning and Assessment Act 1979 (the Act) relevantly identifies non-discretionary development standards in s 79C(2). State Environmental Planning Policy 65 - Design Quality of Residential Flat Development (SEPP 65) establishes design principles for apartment buildings of three or more storeys. It is accompanied by the Residential Flat Development Code (RFDC), which contains more detailed design guidelines. 6 Ku-ring-gai Planning Scheme Ordinance (KPSO) zones this site 2(d3). Development Control Plan 55 - Railway/Pacific Highway Corridor & St Ives Centre (DCP 55) applies detailed controls.

The issues 7 The council's Statement of Issues raised six issues. However, following receipt of the Court-appointed expert, Ms K Gordon's report, the council adopted her position, in effect reducing the dispute to a single issue, namely whether parts of Level 4, 5 and 6 of the building should be further removed from the common boundary with No 8 Pymble Avenue. In the objectors' opinion this did not go far enough and they pressed for a deletion of the top two levels of the apartment building.

The objectors' concerns 8 In addition to the objectors whose properties adjoin the site, two others voiced their concern. Ms J Zara of 108/5 Everton Street said that the proposal was too high and that she was concerned about loss of privacy. Mr J Hill, who lives at 11A Livingstone Avenue, complained that the proposal was too high. In my opinion, the proposal's impact on either of these properties is minor. 9 As stated above, five properties have common boundaries with the site: 4, 6 and 8 Pymble Avenue, and 3 and 5 Livingstone Avenue. The Court heard the evidence of the owners of four of these properties. Dr I Hutchison, lives at 4 Pymble Avenue, a property that adjoins the site to the southwest and is within zone 2(d3). Dr Hutchison's concerns were the overshadowing and overlooking of his front courtyard by the proposed townhouses and the overlooking of his rear yard from the proposed apartment building. 10 I deal with the issue of overlooking below under Privacy. As regards the overshadowing of No 4, during the hearing there was some conflict regarding the extent of sunlight that Dr Hutchison said fell on his front courtyard compared to the extent indicated by the shadow diagrams. The applicant provided revised diagrams, which vindicated Dr Hutchison's position. The true position is that the front courtyard will receive less sunlight (though not significantly less); however, there will be more sunlight falling on the rear pool area. On balance, Dr Hutchison will be slightly worse off in solar access. However, taking into account that the subject site, together with Dr Hutchison's property, has been rezoned, that the solar access is across a side boundary and that there is a fall in the land towards the southwest, in my opinion the impact is not unreasonable. To reduce it, it would be necessary to unreasonably constrain the development potential of the 2 Pymble Avenue portion of the site. 11 Mr B Wickham, who lives at 6 Pymble Avenue, said that his concern was being overlooked and overshadowed from the second floor windows. No 6 Pymble Avenue has only a short common boundary with the site and it is outside zone 2(d3). Most of the shadow reaches it across No 4. Neither the overlooking nor the overshadowing impact is significant. 12 Mr P Dubrijevic, who lives at 8 Pymble Avenue adjoining the site to the southwest, said that his concerns were overlooking, overshadowing and visual bulk as seen from his property. Of all the objectors, Mr Debrijevic is in the most vulnerable position because his land is in a depression and his site adjoins the apartment building rather than the townhouse section of the proposal. Mr Debrijevic said that he would accept a proposal with the top two levels removed. 13 Ms K Gordon agreed that the visual impact on No 8 was too great. She considered that the proposal should be modified in two aspects. First, the balconies should be redesigned to reduce the extent of overlooking of adjacent sites (see Privacy below). Second, parts of levels 4, 5 and 6 closest to 8 Pymble Avenue should be deleted in order to reduce the visual bulk facing that property (see Shrinking the building at Levels 4, 5 and 6 below). 14 Mr A and Mrs V Ming live at 5 Livingstone Avenue adjoining the property to the southeast. Their property is within zone 2(d3); however their substantial two-storey house is new and not likely to be redeveloped soon. Their main concern is being overlooked from the proposed apartment block. I deal with this issue below.

Privacy 15 On most of the balconies that have potential to overlook neighbours, the plans indicate a 1m wide planter box, though parts have no protection against overlooking. Ms Gordon suggested placing privacy screen on the parts where the planter box was missing. Moreover, the planter boxes were not sufficiently wide to prevent overlooking. The applicant's architect and Ms Gordon met during the hearing and agreed on a design solution, which was to add a projecting "lip" to the edge of the planter box, thereby making it effectively wider without taking up any more of the balcony. I understood that the agreement was that this treatment would continue for the whole of the southwest-facing balconies on Level 2. However, amended drawings filed by the applicant after the conclusion of the hearing suggest that, in the applicant's mind at least, the planter box and "lip" were required only for part of the balconies. This is wrong, as it would not prevent overlooking from those parts of the balconies where there is no planter box. The planter box and "lip" are required for the full length of the balconies. The applicant suggested a 1m wide "lip"; however, in my opinion, this would look too dominant. A width of 750mm for the "lip" is sufficient and a reasonable balance between the competing objectives of privacy and bulk reduction. 16 As concerns overlooking in other directions, which is less critical than towards the southwest, the applicant and Ms Gordon came to a satisfactory agreement. Subject to the above, I am satisfied that the proposal's impact on privacy is acceptable.

Shrinking the building at levels 4, 5 and 6 17 The only issue between the parties was whether the Court should accept Ms Gordon's recommendation to delete parts of level 4, 5 and 6. The issue between the objectors and the applicant was whether the two top floors of the proposal should be deleted. 18 In dealing with this issue, I must decide · whether I have the power to require the changes recommended by Ms Gordon and desired by the objectors; and · if yes, whether the changes are justified on merit grounds.

Clause 25M of the KSPO states that, in the 2(d3) zone, the development standards for number of storeys, site coverage, landscaping and building setback are discretionary development standards . Section 79C(2) of the Act explains what non-discretionary development standards are: If an environmental planning instrument or a regulation contains non-discretionary development standards and development, not being complying development, the subject of a development application complies with those standards, the consent authority: a. is not entitled to take those standards into further consideration in determining the development application, and b. must not refuse the application on the ground that the development does not comply with those standards, and c. must not impose a condition of consent that has the same, or substantially the same, effect as those standards but is more onerous than those standards, and the discretion of the consent authority under this section and section 80 is limited accordingly. 19 Clause 25I(5) identifies the maximum number of storeys permissible in the 2(d3) zone. For sites in excess of 2,400m2 (such as the subject site) the number of storeys is five. Clause 25(K) allows an additional storey for steeply sloping sites (such as the subject site). The proposal complies with cls 25I(5) and 25(K). Given that the number of storeys is a non-discretionary development standard, the Court does not have the power to require the applicant to delete the two top floors. Apart from any merit considerations, I cannot therefore require the removal of the two top floors, as suggested by the objectors. 20 Setbacks from boundaries are, however, another matter. Clause 25L(2) states: The third and fourth storey of any building on land within Zone No 2(d3) must be set back at least 9 metres from any boundary of the site of the building with land (other than a road) that is not within Zone 2(d3) (emphasis added) . 21 The third and fourth storeys of the proposed building are set back 9m from the zone interface boundary that exists between the subject site and 8 Pymble Avenue. Ms Gordon's recommendations would result in part of the third and fourth storeys being set back by more than 9m. The question is: does the Court have the power to require part of the third and fourth storeys to be set back by about 12m, given that setbacks are non-discretionary development standards? 22 In my opinion, the power exists. If the development standard were 9m, s79C(2) would constrain the Court's discretion to impose a setback that is more onerous than 9m. However, the development standard is "at least 9m", and a 12m setback is not more onerous than a setback of "at least 9m". If my reasoning were wrong, then the words "at least" would have no work to do. In interpreting a planning instrument I must assume that all the words are there for a reason, unless their presence leads to an absurdity. The development standard of "at least 9m" does not lead to an absurdity. 23 I turn to the question of whether, on merit grounds, I should impose Ms Gordon's recommendations. I note that cls 25K and 25L deal with steeply sloping sites and with zone interface, so the makers of the KPSO have already considered this aspect of the site's relationship to No 8. However, No 8 Pymble Avenue is in an especially vulnerable position, more so than the ordinary property on a zone boundary and a sloping site. Apart from slope and zone interface, it is further vulnerable to impact because it is in a hollow and to the south of the proposed seven-level building. If the fourth, fifth and sixth levels were further away from the common boundary, the visual bulk seen from No 8 would be reduced and so would the extent of shadow that falls on the yard of No 8.

Amended drawings 24 The council's advocate, Mr P Marincowitz, submitted that the applicant should be given an opportunity to amend its plans taking on board changes suggested by Ms Gordon. While the applicant's advocate, Mr J Robson, argued against the necessity of Ms Gordon's suggestions, if the Court's decision is to accept Ms Gordon's evidence, the applicant also wished for an opportunity to amend its plans. Since the Court accepted Ms Gordon's evidence, and the parties agreed that there should be an adjournment, the Court agreed to a short adjournment to allow the applicant to prepare amended drawings that respond to the Court's findings. The amended plans were required for the following changes: · Delete Bedrooms 1, 2 and 3 and part of the Living Room in Unit 17 on Level 4, such that the southwest wall of the building does not extend beyond the line of Bedroom 3 in Unit 16. · Delete Bedrooms 2 and 3 and the Living Room in Unit 22 on Level 5, such that no part of Level 5 projects beyond the southwest wall of Bedroom 1 of Unit 22. · Delete Bedroom 1 in Unit 24 on Level 6. (I note that the above amendments will require replanning of the apartments and, on Level 4 at least, may result in the loss of an apartment. The applicant has free choice on how to rearrange the plan internally as long as it is within the above envelope.) · Provide the balconies on Level 2 with a 1m wide planter box along the entire length of the southwest edge of the balconies. The outer edge of the planter box is to have a cantilevered "lip" projecting 750mm. (If the applicant wishes to increase the width of the balconies to 3m, it should do so by taking an additional 1m out of the living rooms.) 25 The above amendments were discussed in the presence of the only objector who is affected, Mr Dubrijevic. Since they reduce the impact on his property, there was no need to notify the amended drawings. 26

Following a mention on 4 April 2006, the applicant produced amended drawings. In a report dated 24 April 2004 Ms Gordon stated the amended drawings met the requirements of the Court set out above. In the circumstances nothing stands in the way of consent to the application. The appeal is therefore upheld. Orders

1. The appeal is upheld.
2. Development application to demolish the existing structures and erect four townhouses and a seven-level residential flat building on lots 1 and 2 DP 220159 (known as 2-4 Everton Street, Pymble) and lot 1 DP 21778 (known as 2 Pymble Avenue, Pymble) is determined by the granting of consent subject to the conditions in Annexure A.
3. The exhibits are returned except Exhibits 2, A and D.

      Dr John Roseth
      Senior Commissioner

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