The Dubler Group Pty Limited v Ku-ring-gai Council

Development Application :- staged dual occupancy development culminating in the erection of 8 dwellings and the Torrens Title and the Community Title subdivision character/streetscape KEY ISSUES: bushfire risk amenity

Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No. 53 LEGISLATION CITED: Ku-ring-gai Planning Scheme Ordinance Rural Fires Act 1997 Rural Fire Service Regulation 2002

The Dubler Group Pty Limited v Ku ring gai Municipal Council & Anor [2004] NSWLEC 305; CASES CITED: The Dubler Group Pty Limited v Minister for Infrastructure, Planning and Natural Resources & Anor. [2004] NSWCA 424

DATES OF HEARING: 18, 19, 22/12/ 2003, 21/12/2004

APPLICANT Mr P Tomasetti, barrister Mr S Kondilios, solicitor SOLICITORS LEGAL REPRESENTATIVES: Maddocks

RESPONDENT Mr P McEwan SC SOLICITORS Deacons

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10940, 41, 42, 43, 44 and 46 of 2003 The Dubler Group Pty Limited v Ku-ring-gai Council

JUDGMENT 1 COMMISSIONER: This matter comes before the Court in the form of six separate, but related appeals following the refusal by Ku-ring-gai Council (the council) of six development applications. These applications provide for a staged dual occupancy development culminating in the erection of 8 dwellings and the Torrens Title and the Community Title subdivision of the property at 385 Bobbin Head Road, North Turramurra (the site).

2 The matter was heard on 18, 19 and 22 December 2003 but was adjourned part heard following the evidence. The adjournment was required following the enactment of an amendment to State Environmental Planning Policy No. 53 - Metropolitan Residential Development (SEPP 53), the principle planning instrument that effectively prohibited the proposed development. The lawfulness of the amendment was the subject of a challenge in the Land and Environment Court and on 2 July 2004 Pain J found the amendment to be lawful (The Dubler Group Pty Limited v Ku ring gai Municipal Council & Anor [2004] NSWLEC 305).

3 On 6 December 2004, this decision was overturned by the Court of Appeal who found that the applicant has the right to have the application determined without any reference to the amendment (The Dubler Group Pty Limited v Minister for Infrastructure, Planning and Natural Resources & Anor. [2004] NSWCA 424). The matter was referred back to the Land and Environment Court and the matter concluded on 21 December 2004 with submissions from both parties. 4 The site was the subject of an inspection on the morning of the first day of the hearing with representatives of both parties. A number of local residents took the opportunity to provide their evidence at this time. Because of the lengthy adjournment, the parties agreed to the Court independently re inspecting the site after the hearing was completed.

5 For the reasons set out in the judgement, I have concluded that the appeal should be dismissed and the development applications refused. The site 6 The site is described as Lot 3 in DP 231073. It is irregular in shape with a frontage to Bobbin Head Road of 76.175 metres, a northern side boundary of 136.64 metres, a southern side boundary of 156.1 metres and an eastern or rear boundary of 70.25 metres, giving a total site area of 1.01 hectares.

7 The site contains a large single storey brick dwelling situated some 64 metres from the road frontage. A swimming pool, tennis court and some ancillary buildings are located to the rear of the dwelling.

8 The site is situated in area characterised by a mix of residential development including rural residential development to the north, residential to the north-west and a number of developments providing housing for older people or people with a disability, to the south. The proposal 9 The proposal provides for the demolition of the existing dwelling and ancillary structures and the staged erection of dual occupancy developments eventually comprising 8 dwellings with Torrens Title and the Community Title subdivision. The proposal is to be carried out in the following stages: - Stage 1: DA 677/03 - the demolition of the existing dwelling and erection of a detached dual occupancy development. - Stage 2: DA 678/03 - the subdivision of the Stage 1 dual occupancy. - Stage 3: DA 679/03 - the erection of a detached dual occupancy on each of the lots created in Stage 2. - Stage 4: DA 680/03 - the subdivision of the Stage 2 dual occupancy. - Stage 5: DA 681/03 - the erection of 4 new dwellings as detached dual occupancies on each of the 4 lots created in Stages 2 and 4. - Stage 6: DA 682/03 - the subdivision of 4 lots into 8 residential lots and one Community Title lot. 10 At the conclusion of Stage 6, the residential lots will have areas ranging from 1016 sq m to 1788 sq m and a common lot of 543 sq m (see Attachment 1). Relevant planning controls 11 The site is zoned Residential 2(g) under the Ku-ring-gai Planning Scheme Ordinance (the Ordinance). Dwelling houses are permissible within this zone subject to the minimum lot size requirements in cl 58B. These requirements provide for a minimum area of 1.012 hectares and a 36.6 metre frontage. Dual occupancy development is not a permissible use in this zone. Schedule 9 provides aims and objectives for development in residential zones.

12 The proposed development is however permissible through the provisions of SEPP 53. The policy applies to the Ku-ring-gai local government area by way of Schedule 1. Clause 3(1)(d) of the policy aims to encourage housing that will "be of good design". Part 3 of SEPP 53 provides specific controls for dual occupancy development. Clause 16(1) states that Part 3 applies to land that is within a "residential zone".

13 Clause 15(b)(i) seeks to ensure that dual occupancy developments are designed and assessed with a full understanding of the opportunity and constraints of each site. Clause 15(b)(ii) seeks to ensure that dual occupancy developments are designed and assessed having regard to the design principles contained in Part 5. The relevant design principles are streetscape (cl 32(a)) and visual and acoustic privacy (cl 32(b)). 14 Clause 19 provides development standards for allotment size and floor space ratio. There was no dispute that the proposed development satisfies the minimum 600 sq m for a detached dual occupancy and the 0.5:1 floor space ratio requirements. Clause 20 provides development standards for car parking and there was no dispute that the proposed development satisfies this standard.

15 The Ku-ring-gai Dual Occupancy Code is relevant only where it does not conflict with the provisions of SEPP 53. The issues 16 The council filed a Statement of Issues containing 11 issues. These can be conveniently grouped into the following main areas: 1) whether the proposed development contributes to an attractive residential environment, 2) whether the proposed development provides an unacceptable bushfire risk, 3) whether the proposed development adversely impacts on the amenity of nearby properties. 17 The further issue of the public interest is addressed as part of the discussion on the other issues. Residential environment 18 Mr Andrew Minto, a town planner, provided evidence for the applicant. He acknowledges the proposal will result in a form of development that is different to the existing development on the site and on the adjoining parcels of land to the north and east but in Mr Minto's opinion, the proposed development is contemplated by SEPP 53. The proposed dwellings all provide generous setbacks, consistency with surrounding development and the retention of much existing vegetation. The dwellings properly address solar access, acoustic and visual privacy and the general character of the area.

19 Mr Harvey Sanders, a town planner, provided evidence for the council. He describes the proposal as being inconsistent with the existing character of the area and its neighbours to the north and east through increased density and the loss of the existing rural open landscaped character. Instead, the proposal will have the appearance of a conventional subdivision dominated by large two-storey dwellings. He states that the proposal is inconsistent with cl 32(a)(i) of SEPP 53. Mr Sanders also states that the proposal is also inconsistent with cl 15(a) of SEPP 53 and in fact, represents a de facto rezoning of the land.

20 Mr Nick Juradowitch, a town planner provided evidence on behalf of the owner of the property to the north, Mrs Drake. He supports the comments of Mr Sanders and raises additional concerns of overlooking and acoustical impacts on Mrs Drakes property. Mr Juradowitch also states that the residential zoning is an historical anomaly and the type of development likely to be generated by the minimum subdivision standards for this zoning would have a rural-residential zoning in more contemporary planning instruments.

21 There was agreement between the experts that the general locality has a mixed character of urban residential and rural residential development. There was also agreement that the principal issue relates to whether the proposal is of "good design" and specifically its visual bulk, streetscape and the developments interface with adjoining rural residential development. 22 In addressing this issue, cl 32(a)(i) of SEPP 53 states that consent must not be granted unless the Court is satisfied that the proposed development demonstrates that adequate regard has been given to the question of streetscape, and specifically whether the proposal "contributes to an attractive residential environment with clear character and identity". The Dictionary to SEPP 53 defines streetscape as meaning; the character of a locality (whether it be a street or precinct) defined by the spatial arrangement and visual appearance of built and landscape features when viewed from the street. 23 In my opinion, the character of a locality should be assessed from two main viewpoints. Firstly, the future character through the minimum subdivision standards and the permissible uses within the zone because of the absence of any zone objectives and secondly through the form of existing development.

24 In considering the future character, the Residential 2(g) provides a minimum area requirement of 1.012 hectares and the zoning table provides only for dwelling houses and home occupations as development that may be carried out with development consent. In considering this, it could be reasonably assumed that the character of the Residential 2(g) zone is to principally provide a rural-residential living environment, characterised by a single dwelling on a large lot and with the opportunity for limited rural activities.

25 In considering the proposal against the future character, the proposal is clearly inconsistent as it more closely reflects the form of development contemplated by the Residential 2(c) zone with its 929 sq m. minimum area requirement.

26 In relation to existing development, it was argued by Mr Minto that the proposal is consistent with the redevelopment of the Seminary site, located on the opposite side of Bobbin Head Road. In my view, little if any support can be gained with a comparison with this site as it was recently rezoned from Special Uses-Seminary to Residential 2(c) to allow the subdivision of the land. In contrast to the subject site, it was necessary to rezone this land to allow a form of development that Mr Minto describes as similar to that proposed in the subject application. 27 The development to the north of the site consists of substantial residential dwellings on large lots with large setbacks and surrounded by landscaped open space. This form of development is consistent with the development contemplated by the Residential 2(g) zone.

28 The comparison with the SEPP 5 development to the south provides some support for the applicant's case. This site and a site further to the south contain the Huon Park Retirement Village and The Cotswold Retirement Village. They are also zoned Residential 2(g). This form of development was previously a permissible use in the locality through SEPP 5, although recent amendments to SEPP 5 now prohibit this form of housing. It is a form of development that provides a higher density environment than envisaged by the Residential 2(g) zone.

29 In considering the requirements of cl 32(a)(i) of SEPP 53, I agree with the conclusions of Mr Sanders and Mr Juradowitch. I am not convinced that the proposed development contributes in a positive way to the locality. Even accepting the mixed nature of development in the area, in my view, greater weight should be given to a form of development that is more aligned to the form of development envisaged by the Residential 2(g) zone. Even accepting Mr Minto's evidence that SEPP 53 will generate a form of development that is different, I do not accept that a development that provides eight dwellings where only one dwelling is permitted, without the use of SEPP 53, can be said to contribute to the character of area. The existence of the adjoining SEPP 5 developments are not sufficient justification for the form proposed in this application when the character of the wider area is considered.

30 In relation to streetscape, and with the benefit of the site inspection, it was clear that the proposed development would be visible from locations along Bobbin Head Rd near the site. While the two dwellings located at the street frontage will be clearly visible from the street, other proposed dwellings will also be noticeable and viewed in the same context as the front dwellings from a number of locations near the site, including Mrs Drake's property. This massing of buildings highlights the proposals inconsistency with the general rural residential character of the wider area.

31 I also do not accept Mr Minto's statement that SEPP 53 contemplates the proposed development. While the Residential 2(g) zoning allows the proposal to be considered under the provisions of SEPP 53, it does not necessarily follow that the form of development proposed in this application is contemplated by SEPP 53. Even though SEPP 53 aims to encourage the provision of housing, including the broadening of building types, it is still subject to the qualitative requirements of cl 32. I note the lot sizes in cl 19 are expressed as a minimum. This could be reasonably interpreted as a method by which SEPP 53 addresses its general applicability to "residential zones" and the qualitative assessment required by cl 32.

32 I also agree with Mr Juradowitch that Mrs Drake has a valid objection. It would be reasonable to expect that the development on the adjoining would be generally consistent with the form of development anticipated by the Residential 2(g) zoning. An interface with the four dwellings on the subject site is more likely to be found in an urban environment rather than a rural-residential setting. Again, this is a consequence of the level of development proposed in the application.

33 In terms of cl 32(a)(i) of SEPP 53, I find that inadequate regard has been given to the principle of streetscape and consequently consent must not be granted.

34 I also find that the proposal is inconsistent with cl 3(1)(d) of SEPP 53 in that the housing will not "be of good design".

35 I also find that the proposal is inconsistent with the general aims in Schedule 9 of the Ordinance in that it does not improve the environmental character of residential zones (cl 1(a)) and is incompatible with the existing environmental character of the locality (cl 1(b)).

36 For completeness, I will briefly deal with the other issues. Bushfire risk 37 Dr Anthony Green provided evidence for the council on this issue. He states that the existing community is at a higher risk than other communities during a bushfire emergency due to the inability to self evacuate and obtain assisted evacuation. The addition of more buildings can greatly increase the risk of death to the existing population. Relatively fewer additional people can cause a much larger loss of life because of the degree of saturation already in existence in the community by delaying a timely evacuation.

38 The problems of evacuation from the area during a bushfire means that if additional residences are to be approved then they will have to have sufficient provision for shelter if they are not to impact on the existing population. Dr Green states that details have not been provided to suggest that this is the case.

39 Mr John Travers provided evidence for the applicant. He disagrees with the conclusions of Dr Green and states that under the most conservative of assessments, the development is safe for the occupation of persons and is in accordance with the requirements of Planing for Bushfire Protection. This is confirmed by the issuing of a bush fire safety authority under s 100B of the Rural Fires Act 1997 by the NSW Rural Fire Service.

40 In considering this issue, the site is identified on councils Bushfire Prone Land Map, made pursuant to s 146 of the Environmental Planing and Assessment Act 1979 (the EPA Act). As the land is to be subdivided, s 91 of the EPA Act requires the NSW Rural Fire Service to issue a bush fire safety authority under s 100B of the Rural Fires Act 1997. In issuing the bush fire safety authority, the NSW Rural Fire Service is to have regard to the criteria set out in cl 46 of the Rural Fire Service Regulation 2002. This relevantly includes: (ii) the siting and adequacy of water supplies for fire fighting, (iii) the capacity of public roads in the vicinity to handle increase volumes of traffic in the event of a bushfire emergency, (iv) whether or not public roads in the vicinity battling with fire trail network have two-way access, (v) the adequacy of arrangements for access to and egress from the development site for the purposes of an emergency response; (vi) the adequacy of bushfire maintenance plans and fire emergency procedures for the development site 41 While there was some dispute over the suitability of the dwelling on lot 4, I accept that the most recent bush fire safety authority endorses the location of the dwelling following a site inspection with Mr Travers and the NSW Rural Fire Service.

42 On this issue, I accept the evidence of Mr Travers. Even though Dr Green is well-qualified to address this issue, the evidence of Mr Travers more thoroughly addresses the specific requirements of the site in terms of the requirements under the Rural Fires Act 1997. The Rural Fire Service also supports the conclusions of Mr Travers. This support must be given some considerable weight in the assessment of this issue because of their statutory role in the assessment of bushfire risk.

43 The Rural Fires Act 1997 imposes a heavy responsibility on the NSW Rural Fire Service and there was no evidence to suggest that they had not fully considered the bushfire risks to the proposed development even though their findings were not supported by the local residents. Amenity impacts 44 The amenity issue relates to the property at 387 Bobbin Head Road owned by Mrs Drake. Mr Juradowitch states that while the setback to the proposed dwellings is in excess of 9 m from the northern boundary and there is an opportunity for screening fencing landscaping, the acoustic and visual privacy impacts need to be considered in the context of the existing rural residential environment where privacy expectations would be much greater than in an urban residential situation.

45 Clause 32(b) provides requirements for visual and acoustic privacy. The proposed development should, where practicable, consider the visual and acoustic privacy of neighbours in the vicinity and residents by "appropriate site planning, the location and design of windows and balconies, the use of screening devices and landscaping" and "ensuring acceptable noise levels in internal living and sleeping areas of new dwellings".

46 With the setbacks provided and the opportunity for screening and landscaping, the potential visual and acoustic privacy impacts are likely to be slight, even when compared to the rural residential context. Consequently, I accept that adequate regard has been given to the issue of visual and acoustic privacy. Orders 47 For the foregoing reasons, the Orders of the Court are; 1) The appeals are dismissed. 2) DA 677/03, DA 678/03, DA 679/03, DA 680/03, DA 681/03 and DA 682/03 for a staged dual occupancy development culminating in the erection of 8 dwellings and the Torrens Title and the Community Title subdivision of the property at 385 Bobbin Head Road, North Turramurra is refused. 3) The Exhibits are returned

      G T Brown
      Commissioner of the Court

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