Urbanesque Planning Pty Ltd v Ku-ring-gai Council

The site and its locality 4The site comprises two lots Lot Y is the larger of the two lots with an area of 997.03 sq m, Lot C has an area of 444.05 sq m. Both lots are irregular in shape and are generally in a west to east alignment with the western boundary being the street frontage. 5Lot C is a battle-axe block with a street frontage of less than 0.5 m. It extends in a very narrow triangular shape between Lot Y and the adjoining property to the south. It forms the eastern boundary of the adjoining property. Along its southern boundary is a 4.57 m wide, open drainage easement along a natural watercourse. It adjoins Lot Y to the north and slopes steeply to the east. Apart from the drainage easement Lot C comprises several retained paved terraced areas with steps and trees. There is no vehicular access to Lot C. 6The applicant's part two/part three storey 1950s dwelling, in-ground pool and other structures are located on Lot Y. The first floor addition was added in the 1970s. The eastern portion of Lot Y beyond the pool slopes to the east and is retained by a stone wall. To the north of Lot Y is an access way to the property at the eastern end of the site. 7The streetscape is dominated by large one to two storey houses on large allotments within landscaped gardens. Dwellings typically have generous setbacks. As the street slopes to the north and south of the drainage easement the front fences are generally stepped down the slope. The fences are of a variety of styles and heights. 8The existing front fence on the site is constructed of sandstone and is confined to the south of the driveway. To the north of the driveway there is no fence between the footpath and the applicant's landscaped front garden.

Background to the appeal 9On 20 April 2010 the applicant lodged DA0234/10 for alterations and additions to the existing dwelling and construction of a new front fence. As the overall height of the dwelling at 8.06m exceeded the development standard of 8.0 m, a State Environmental Planning Policy No. 1 - Development Standards (SEPP 1) objection was made to vary this standard. 10On 25 May 2010, consent was granted, the SEPP 1 objection supported and forty-four conditions were imposed on the consent including that the front fence be lowered to a height of 1.2 m and the consolidation of the two lots; the conditions and the reasons they were imposed are given in [3]. 11The original development application for the additions and alterations to the dwelling proposed a new front fence of predominantly 1.5 m high with a maximum of 1.65 m high to be constructed of painted timber panelling and cement rendered piers and walls. The plans also showed a low crib wall beside a side path encroaching onto Lot C. 12On 6 July 2010 the applicant lodged the first of two s 96 modification applications (MOD0165/10) seeking to delete conditions 13 and 41. The basis of the objection to condition 13 was that the proposed fence, whilst exceeding 1.2 m, was consistent with other fences in the street and compatible with the style of the dwelling. With regard to condition 41, the applicant argued that it had no planning purpose and was unreasonable. 13MOD0165/10 was refused on the basis that the fence was non-compliant and that the approved development traversed both allotments and relies on the site area of both allotments to achieve compliance with the relevant provisions of the DCP. 14On 5 November 2010 the applicant lodged modification MOD0273/10 against conditions 13 and 41. The application included amended plans showing the design of the front fence amended to sandstone dwarf wall and piers with wrought iron panels and gates. The other amendment was the realignment of the crib wall and its removal from Lot C so that all construction would be entirely within the boundary of Lot Y. 15The council subsequently refused MOD0273/10. The reasons given in the Notice of Determination made no reference to the fence and condition 13 but restated the reasons for the refusal of condition 41. In addition, a new reason was given in that the consent as proposed to be modified is not substantially the same as the development for which consent was originally granted as the all of the proposed development seeks to locate all works on Lot Y which then contravenes a number of development standards. The areas of non-compliance include exceedence of floor space ratio (DCP38 cl 4.2.1), exceedence of built upon area (DCP38 cl 4.2.7) and shortfall in soft landscaped area (DCP38 cl 4.3.3). 16MOD0273/10 is the appeal now before the Court. 17Council's contentions, as given in the Statement of Facts and Contentions (SF&C) are as follows:

1. Whether or not the front fence illustrated on Sheet 4 of architectural plans by Lindsay Little & Associates dated as Amendment 19 October 2010 is acceptable within the streetscape of Karranga Avenue having regard to the stated objectives of Clause 4.1.5 of the DCP.
2. Whether or not the consolidation of Lot Y and Lot C required by Condition 41 offends object 5(a)(ii) of the Act being "the promotion and co-ordination of the orderly and economic use and development of land". Whether or not the application to modify the consent satisfies Clause 96(1A)(b) of the Act, namely that the consent authority is satisfied that the "development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all)." I note that the council's SF&C does not refer to any of the numerical breaches of the DCP referred to in the Notice of Determination of MOD0243/10. 18The applicant contends that the proposed fence achieves the assessment criteria in clause 4.1.5 of the DCP and is consistent with those of surrounding properties and with the style of the dwelling. 19With respect to condition 41, the applicant contends that it is reasonable and conventional to retain Lots Y and C, which are within the same ownership, and to use the land for the proposed use of a single dwelling house with ancillary development. The applicant considers it is not reasonable to separate Lot C from the calculation of council's development controls. 20The applicant also contends that the original application did not propose consolidation of the lots but that the site was clearly identified as comprising two lots. The original application included a retaining wall and paving to the south of the dwelling that partially extended onto Lot C. The plans were subsequently amended to remove those works from Lot C in order to address the council's stated reason for the imposition of condition 41.

The assessment framework 21Sect 5 of the Act specifies the objects of the Act. Of particular relevance is s 5(a)(ii) which states that one of the objects is to encourage: (ii) the promotion and co-ordination of the orderly and economic use and development of land 22The relevant planning instrument is Ku-ring-gai Planning Scheme Ordinance (KPSO) as amended 31 October 2008. The development is permissible within the zone 2(b). 23The Ku-ring-gai Residential Design Manual - Development Control Plan No 38 (DCP38) is relevant. Clause 4.1.5 refers to front fences. The assessment criteria states in part: ...front fences if present in the street, should be designed and located so as to:

• Maintain the streetscape character;
• Be consistent with the established pattern of fences;
• Allow private gardens to merge with their neighbours and support the landscape character of the area;
• Ensure an adequate amount of useable open space; and
• Be historically appropriate and retain the heritage significance of heritage items and their settings and the heritage significance of conservation areas.
• The Design requirements state that the assessment criteria should relevantly be achieved by:
• Restricting the height of visually transparent fences (such as metal grille or timber picket) to 1.2 metres.

The hearing and evidence 24The hearing commenced as a s 34 conciliation conference on site with an inspection of the site and fence design within the street. It was observed that the majority of front fences in Karranga Avenue would not comply with cl 4.1.5 of the DCP. The range of styles is variable however there are a number of examples of fences similar to that proposed by the applicant. Due to the slope of the street the fences step down the street. It was noted that the front of the applicant's property is steeper than most adjoining properties. 25The rear of the property and the features of Lots C and Y were noted and as described in [4]-[6]. 26As there was no agreement between the parties, the conciliation conference was terminated and the parties agreed to me hearing the matter. It was agreed that I should determine condition 13 and that the hearing would concentrate on condition 41. 27Ms K Munn, Planner for council and the officer who assessed the applications gave planning evidence for the respondent. Mr E Sarich gave planning evidence for the applicant. 28Ms Munn maintains that the applicant has the benefit of the site area of Lot C without the burden and that it is reasonable in the circumstances, notwithstanding the lots are in the same ownership, to consolidate the lots so that they are managed and maintained as one. In her opinion this represents an orderly use of the land. She maintains her position that the calculations for the approved additions and alterations were done on the basis of the total site area and in order to maintain compliance, the two lots should be consolidated. If not consolidated and Lot C was to be sold, the dwelling on Lot Y would be non-compliant. This, she says, would not be in the public interest as it would become an inconsistent application of council's planning controls. 29Mr Sarich agreed that the reason for the imposition of condition 41 is to ensure that the benefit of the land in Lot C on which the application relies is not used in another application and thereby hinder the orderly development of land, however he does not agree that the condition should be imposed. He considers if Lot C was sold, it may be subject to a future development application that would then be assessed against the controls and on its merits. He considers that even if Lot C was sold it doesn't have an automatic dwelling entitlement and would require a SEPP 1 objection in the light of the substantial variance with the development standards. This he says is something council is unlikely to support. 30In respect of the need to discharge stormwater from Lot Y across Lot C, he said that if Lot C was sold, an easement would have to be negotiated but that would be a matter to be determined if and when the Lot may be sold.

Submissions The applicant's position 31Mr McKee submits that the council's argument that the consent as proposed to be modified is not substantially the same as the one for which consent was originally granted is based on:

• The development will be on 2 lots instead of one
• The consolidation is required in order for the development to comply with DCP 38
• Not all of the proposed works are contained within Lot Y because of the need to dispose of stormwater across Lot C, and
• Lot C, if not consolidated with Lot Y, 'might be utilised in another application'. 32Mr McKee contends that the modification application is substantially the same as the one for which consent was originally granted. In support of his contentions Mr McKee cites the cases of Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 where Stein J considered that the word 'substantially' means 'essentially or materially or having the same essence'. By comparing 'the before and after situations' ( Vacik and Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280 at [55]), he contends that without condition 41, the consent is for alterations and additions to a residence including a front fence and that has not changed. 33In North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 97 LGERA 433 at [439] the Court held that 'modify' meant 'to alter without radical transformation'. In this Mr McKee argues that the removal of the path and retaining wall from Lot C was to comply with council's reason for imposing the condition and not to excise the lot. He contends that Lot C will continue to be part of the land to which the consent applies. This minor change and the fact that the size of the land to which the consent was given remains the same is not a radical transformation. He states that the 'site' was clearly identified in the original development application, the Statement of Environmental Effects and the council reports as comprising Lots Y and C. Without condition 41, the only difference will be the development will be on 2 separate titles and not one. 34For the same reasons, the modification is qualitatively the same ( Moto Projects (No 2) at [56]). In consideration of the contested non-compliance with development standards, and therefore is it quantitatively the same, Mr McKee contends that as condition 41 does not alter the size of the development site to which approval was given, it isn't required in order to comply with DCP 38. He cites Bassett and Jones Architects Pty Limited v Waverley Council (No 2) [2005] NSWLEC 530 at [7] that even if consolidation was required for the reason of compliance, the fact that a proposed modification will result in a development that does not comply with a development standard or planning control does not cause the modification to be transmuted into one which is not substantially the same as the development to which consent was given. 35With respect to the council's concerns that Lot C might be used in another application he says that this is speculation and irrelevant to the test in s 96(1A)(b) of the Act. He says that should any future development application be made for that Lot it would be assessed as any other DA. Similarly, if the situation were to change, for example, with any future boundary adjustments, the issue of an easement for disposal of stormwater would be a matter at that time and not now as the lots remain in the same ownership. On that basis he contends that the retention of 2 lots does not offend object 5(a)(ii) of the Act. The respondent's position 36Ms Finn for the council contends that approval was granted on the basis of a condition requiring the consolidation of the two lots and that the calculations for compliance with the DCP were done on the basis of the combined area. She cites Bignold J at [56] in Moto Projects (No 2) in regards to the comparison of the modified with the original application. ' Rather, the comparison involves an appreciation qualitative as well as quantitative, of the developments being compared in their proper context (including the circumstances in which the development was granted'. That is, in the circumstances of this matter, the approval was granted on the basis of the consolidation of the lots. 37She contends that the deletion of condition 41 and the reliance on the area of Lot Y only, the Lot on which the development is located, will result in a non-compliant development which quantitatively and qualitatively is therefore not substantially the same. 38Ms Finn also asserts that s 80 of the Act enables a council to approve a development subject to conditions. The relevant condition here is one that requires consolidation of the lots in order to give certainty to matters such as stormwater disposal from Lot Y as well as to meet the object of the Act regarding the orderly development of land.

Condition 41 39The original application was approved, subject to conditions. In the report that recommended the approval of DA0243/10 Ms Munn states in the conclusion that the proposal is generally consistent with the relevant controls and is recommended for approval subject to conditions. When questioned as to where condition 41 came from, given that the report had not raised concerns about the calculations and the need to consolidate lots, she stated that it was a standard condition of consent where works would fall across two lots. 40With respect to the first s 96 modification assessment report, Ms Munn states: It is considered the development is both essentially the same development as approved and the modification alters without radically transforming the approval development. The development is qualitatively the same development as approved and quantitatively maintains the same as the approved development. For these reasons, the development is considered to be substantially the same development. Later in the report, with respect to condition 41 and the applicant's contentions that the condition had no planning purpose, she states in part: The condition was imposed to ensure the sites were consolidated given the consented development relied upon both allotments to achieve compliance with the provisions of the DCP and in [sic] included works which traverses [sic] the boundaries. The condition was placed on the consent to ensure orderly development of the land. The condition is imposed for a planning purpose. The site access and stormwater drainage relies on upon the allotment 41In the second s 96 modification application report Ms Munn changes her position on whether or not the modification application is essentially the same as the one for which approval was originally granted. In this instance she says it is not as the development is entirely on Lot Y and this creates non-compliance with the controls. Under cross-examination she said that whilst she originally held this opinion the first time the applicant lodged a s 96 modification application, she had a different team leader (and presumably was overruled). Hence the notice of determination for MOD0273/10 details, for the first time, the other areas of non-compliance with the DCP. 42On reviewing the history of the matter on the evidence before me it is clear that the original development application and the accompanying Statement of Environmental Effects (SEE) clearly identify the 'site' as comprising two lots. The SEE states that "The subject site comprises two lots however development is mostly confined to Lot Y... due to its topographical constraints...this large site slopes in an easterly direction and has been developed so as to minimally disrupt the natural elements". It is clear throughout the SEE that the total area of the site is 1,444sq m. It is on this basis that all calculations were done in order to determine compliance with council's DCP38. 43Section 80(1)(a) enables a consent authority to approve a development subject to conditions. It appears in this matter that the reason for the imposition of condition 41 was not clearly articulated by council. In amending the plans by removing the path and retaining wall off Lot C the applicant considered that the condition was met. However, in the subsequent refusal, further issues of non-compliance are raised as well as the issue of not substantially the same development. Whilst this seems to me as if the goal posts have been shifted somewhat, the questions that need to be considered are whether the development is substantially the same and, if it is, whether or not condition 41 should be imposed. 44I agree with Mr McKee that the development is substantially the same as the one for which approval was granted; the changes are minor, and the size of the land to which the consent was given remains the same. As such I am satisfied that s 96(1A)(b) is met and I can consider the modification application. 45However, I agree with Ms Finn that condition 41 should stand. Section 79C(1) requires the consideration of any development control plan. DCP38 specifies the various controls and limits for development. The original approval was granted on the basis of the total site area, the consolidation of the lots is a way of ensuring compliance with the DCP into the future. Section 79C(1)(e) requires consideration of the public interest. It is in the public interest that the objects of the Act be satisfied. Section 80A(1)(a) enables a condition of consent to be imposed if it relates to any matter referred to in s 79C(1) of relevance to the development the subject of the consent. 46I agree with Ms Munn in her comments in the joint experts' report that condition 41 meets the Newberry tests in that it has been imposed for a planning purpose, it fairly and reasonably relates to the development, and is one that could be reasonably imposed in the circumstances. 47In this matter the applicant relies on the total area of the site and as such the opportunity for the development is available because of the combined areas of the 2 lots. I do not consider it unreasonable for the council to condition consolidation in order to formalise the basis on which the calculations for compliance were made. In addition. Lot C is of an irregular shape, has no effective road frontage, is burdened with a drainage easement, has topographical challenges and contains vegetation that would also restrict any separate development. Therefore it would seem to me that the requirement to consolidate the lots is reasonable and consistent with s 5(a)(ii) of the Act by promoting the orderly and economic development of land. 48Therefore I find that condition 41 remains with the reason being to promote the orderly and economic development of the land. Condition 13 49In response to directions issued to the parties, both parties have submitted their preferred version of Condition 13 - Front Fence. I am satisfied with the condition drafted by the applicant which reads: The proposed front fence shall not exceed 1.5 metres in height at any point above natural ground. The sandstone pillars are to have a maximum height of 1.5 metres. The wrought iron panels are to be deleted and replaced with wrought iron palisades. The fence is to be visually transparent and in accordance with the plan prepared by Lindsay Little & Associates dated 10 May 2011 and titled 'Front Fence Detail' and referenced in condition one of this consent. 50The design requirements in cl4.1.5 of DCP38 do not mandate a maximum height of 1.2 m, the word 'should' is used. In the circumstances of this matter I consider the proposed fence meets the assessment criteria in cl 4.1.5 in that it maintains the streetscape character, is consistent with the established pattern of fences, supports the landscape character of the area, ensures an adequate amount of useable open space and is appropriate to the design of the dwelling. As stated previously, most fences in the street would not comply with a 1.2 m maximum height.

Orders: 51As a consequence of the forgoing, the Orders of the Court are: (1)The appeal against condition 13 is upheld in part. Condition 13 in the original consent for DA0243/10 is to be replaced with the condition as written in [49]. Condition 1 is to be amended accordingly by referencing the plan title, author and date in the table of approved architectural plans and documentation. (2)The appeal against the imposition of condition 41 is dismissed. Condition 41 remains as written in the original development consent for DA0243/10. (3)Development consent is granted to s 96 modification application No MOD0273/10 subject to orders (1) and (2). (4)The respondent is to file a copy of the amended conditions with the Court by the close of business 2 June 2011. (5)Exhibits 2 and 3 are returned; all other exhibits are retained. J Fakes Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 June 2011