Andrew Burgess v Ku-ring-gai Council

[2024] NSWLEC 1113

Land and Environment Court

New South Wales

Medium Neutral Citation:

Andrew Burgess v Ku-ring-gai Council [2024] NSWLEC 1113

Hearing dates:

12 and 13 December 2023

Date of orders:

14 March 2024

Decision date:

14 March 2024

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court Orders that:

(1) The appeal is dismissed.
(2) The Development Application DA0323/22, as amended, seeking development consent for alterations and additions including a first floor addition over the existing garage for use as a secondary dwelling at Lot 2 in DP 522802 known as 6 Wattle Street Killara NSW 2071, is refused.
(3) The Exhibits, apart from Exhibits A, B and 1, are returned.

Catchwords:

DEVELOPMENT APPLICATION – secondary dwelling – alterations and additions – character – bulk and scale – privacy – landscaping – private open space – hearing

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Land and Environment Court Act 1979, s 34AA

Ku-ring-gai Local Environmental Plan 2015

Texts Cited:

Ku-ring-gai Development Control Plan 2022
Ku-ring-gai Community Participation Plan 2020

Category:

Principal judgment

Parties:

Andrew Burgess (Frist Applicant)
Yang Wu (Second Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor)(Applicant)
C Shaw (Solicitor)(Respondent)

Solicitors:
McKees Legal Solutions (First and Second Applicant)
Shaw Reynolds Lawyers Pty Ltd (Respondent)

File Number(s):

2023/198433

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Andrew Burgess (applicant) against the actual refusal by Ku-ring-gai Council (the respondent) of Development Application DA0323/22 seeking development consent for alterations and additions including a first-floor addition over the existing garage for use as a secondary dwelling at Lot 2 in DP 522802 known as 6 Wattle Street Killara NSW 2071.

2. The Court arranged a conciliation conference between the parties under s 34AA(2) of the Land and Environment Court Act 1979 (the LEC Act). This was held on 12 December 2023. The parties failed to reach an agreement during the conciliation process that would be acceptable to the parties. Accordingly, the conciliation was terminated, and the matter proceeded to hearing on the 13 December 2023.

3. As explained in the following judgment, I have concluded that the development application should be refused, and the appeal dismissed. The proposal provides for a secondary dwelling in a location that is not characteristic of development outcomes in the area, has an adverse visual impact, has reduced setbacks which heighten that impact, has reduced areas of private open space and, as a result of the tight location, has privacy impacts which are unacceptable.

The Proposal

4. The Development Application is seeking development consent for alterations and additions. The work includes adding a first floor to the existing garage for use as a secondary dwelling.

The Site and Locality

5. The site, as described in the Statement of Facts and Contentions, is as follows:

1. The land has a total area of 1596m²;

2. The site is located on the northern (high side) of Wattle Street;

3. The site is a battle-axe located behind 4 Wattle Street Killara, accessed via an access handle (approximately 45m long) adjacent to the eastern boundary of 4 Wattle Street Killara; and,

4. The site currently accommodates what predominantly presents as a two-storey dwelling of brick construction with a pitched tile roof.

6. At the commencement of the hearing the parties undertook a site view. This included an inspection of the subject site to understand the proposed bulk and scale of the development and the relationship of the building to adjoining properties. A view was also undertaken of the streetscape in the immediate vicinity of the site. The site view also enabled the parties to view the properties adjacent to the proposed development.

Public Submissions

7. The Development Application was notified on 12 August 2022, for a period of 14 days (until 26 August 2022) in accordance with Council’s Community Participation Plan. Three submissions were received raising issues relating to overlooking, acoustics, heritage aspects, overshadowing and bulk and scale.

8. During the site view at the start of this matter, oral submissions were heard on behalf of adjoining owners. The oral submissions raised concerns relating to the perceived impacts arising from scale, character, privacy and overshadowing.

The Ku-ring-gai Local Environmental Plan 2015

9. The site is located within the R2 Low Density Residential zone pursuant to Ku-ring-gai Local Environmental Plan 2015 (KLEP 2015). The proposed development, being a new secondary dwelling, is permissible with Development Consent in the zone. The proposed secondary dwelling formed a major part of the alterations and additions to existing buildings on the site.

The Ku-ring-gai Development Control Plan 2022

10. In respect to Building Setbacks, Section 4A.2 of the Ku-ring-gai Development Control Plan 2022 (KDCP) has the following objectives:

“To ensure that the appearance of new development is of a high visual quality, enhances the streetscape and complements good quality surrounding development.

To ensure development is appropriately located on site and

maintains streetscape character;

ensures the amenity of neighbouring properties is maintained or enhanced;

allows for the provision of landscaping and provide room for additional tree plantings to grow to maturity;

facilitates solar access, daylight access and ventilation;

protects significant vegetation;

facilitates efficient use of the site; and minimises bush fire hazard by preserving a “fuel free” zone (where development is adjacent to high bush fire hazard areas).

To enable landscaping to be provided between neighbouring buildings, particularly where there are two storey structures.

To provide privacy and soften the visual appearance when viewed from the street and from the neighbouring property.

To maintain visual amenity and solar access of private open space.

To ensure that side setbacks provide adequate solar access and day light access.

To ensure dwellings on battle-axe lots are sited to have minimum impact on the amenity of private open spaces and living areas on neighbouring properties.

To ensure adequate privacy and amenity for each dual occupancy dwelling.”

The Issues

11. The contentions listed in the Statement of Facts and Contentions (SOFAC’s) remain contested. Based on the material provided to the Court, both oral and written, the contentions are grouped into the following issues

1. The resultant character of the built form and how it manifests itself in terms of visual presence, proximity of built form, scale and appearance.

2. The landscape solution and whether it mitigates the visual presence of the proposal and/or exacerbates the impacts to neighbouring properties.

3. The impacts on amenity including visual impacts, acoustic impacts and overshadowing.

12. The respondent maintains the position established in the SOFAC’s that the proposal is not acceptable in terms of character, visual bulk, privacy and overshadowing impacts.

13. The applicant discusses the merits of each aspect of the planning controls. In summary, the applicant says that the proposal is generally compliant with the numeric controls, is appropriate for the character of the area, has an appropriately chosen palette of materials and finishes, and has mitigated visual impact and privacy concerns.

14. The applicant makes note that the proposed dwelling is for family use. This is not an outcome which is assessable, nor enforceable, if development consent were to be granted. The development consent would run with the property, and it is therefore open to any future owner to utilise the secondary dwelling for rental accommodation, if they see fit. On that basis, the application must be assessed in terms of the possible future use and occupation.

15. As with most planning assessments, the issues arising from each aspect of the planning assessment are interrelated. The outcomes of scale and character, privacy and overshadowing are all affected by the location and size of a building relative to the property boundary. A further assessment is then required as to what is on the adjoining property and how the buildings or spaces are used.

16. The Court is assisted by the planning evidence provided in a Joint Planning Report prepared by Mr A Minto (applicant) and Mr B Pearce (respondent). The Joint Planning Report is Ex 4 to these proceedings.

Is the proposed bulk and scale acceptable?

17. There are several questions that require answering in order to determine whether the bulk and scale are acceptable. The primary discussion is in reference to Contention 1 (Environment and Character). The SOFAC’s raise this issue in several places given the broadness of the title and make reference to both the KLEP 2015 and the KDCP (Sections 4 and 5). The bulk and scale assessment requires consideration of a suite of controls relating to the factors that influence the bulk and scale of a building.

18. The KDCP helps guide compliance with the objectives by setting various numeric and performance-based outcomes. The most significant, in this instance, are the setback controls, the privacy outcomes, the overshadowing outcomes and the visual impacts.

19. The Objectives to Section 5A.2 of KDCP relating to Site Layout are as follows:

“1   To ensure the secondary dwelling has easy access and provides good amenity for occupants.

2   To retain the existing Ku-ring-gai landscape and neighbourhood character of a single dwelling in a garden setting.

3   To ensure that the secondary dwelling does not adversely impact the liveability and amenity of the principal dwelling.

4   To ensure that the secondary dwelling does not visually dominate the principal dwelling.”

20. Mr Pearce turns to an assessment of the proposal against the objectives as follows (par 14 of Ex 4):

“i. Objective 2: the existing development on the site is typical of the neighbourhood character which consists of a single dwelling in a garden setting. A first-floor secondary dwelling is not consistent with this character.

ii. Objective 2: the location in the front setback detracts from the garden setting by intercepting and dominating the sightlines across boundaries between the subject and neighbouring dwellings.

iii. Objective 2: the location in the front setback and the two storey building envelope is unnecessary as sufficient space exists elsewhere on the subject site to accommodate a single storey secondary dwelling.

iv. Objective 4: the ridge height of the proposed development (RL 115.86) exceeds that of the principal dwelling (RL 115.40). Therefore, the proposed development dominates the principal dwelling and cannot be considered secondary.”

21. Mr Minto does not share those views on the character of the development although he acknowledges some numerical non-compliance with controls that may impact on the proposal. Mr Minto also acknowledged, in his oral evidence, that the proposal will have a visual presence. In the joint Report, at par 12(v), Mr Minto says there will be no loss of privacy. At the same time, he states that the overlooking from the proposed juliette balconies will be reasonable.

22. It was clear from the site view that the eastern facing juliette balcony would allow overlooking, of some of the yard and swimming pool, of the property immediately to the south. This was an agreed outcome amongst the parties, but the parties differ as to whether the loss of privacy is unsatisfactory.

23. Both the experts discuss the side setback controls, and outcomes, in response to the contention about character (Contention 1). This goes to my comments at par [15] that these matters are generally related in terms of assessment and outcomes. The extent of setback influences the apparent scale by determining the distance from which the building is viewed and the ability to screen that building by landscaping within the setback.

24. Mr Minto acknowledges, in the joint report in the table to par 12(c), that the proposal does not comply with side boundary setbacks but feels that these variations are justifiable. Mr Minto notes that the required western setback is 4.57m versus a provided setback of between 2.442m (new first floor) and 3.7m (existing garage). Mr Minto also notes that the required southern setback is 10.6675m compared with a provided setback of between 1.23m and 2.533m.

25. Mr Minto says that this variation is acceptable because the proposal seeks to construct the proposed secondary dwelling on top of the existing garage structure. The only change to the existing building setbacks relates to the provision of a new covered entry to the proposed secondary dwelling (table to par 12(c) in Ex 4).

26. Mr Pearce says, at par 14(b) of Ex 4, that the proposal will have adverse impacts because of overshadowing of the pool area and yard of the adjoining property. He also says that there are privacy impacts to both adjoining properties but concedes that the impacts to the property to the west are limited to areas of the tennis court. He says that there are privacy impacts, which are unacceptable, to the rear yard and pool area of the adjoining property to the south.

27. There are several issues that arise from this contention that are fatal to the application. The respondent has demonstrated that the planning controls have regard to a character for this area which includes generous setbacks and a landscape setting. The respondent makes the point that a single storey structure (the existing garage) is dealt with differently, in terms of scale, character and appearance, than a proposal to add a new first floor dwelling on the existing garage structure.

28. The western and southern elevations highlight the scale of the proposed work and the view of the proposed building from adjoining properties. They are as follows:

29. These elevations give some context to the scale and character of the proposed first floor addition relative to the existing dwelling and to the boundary. The proposed works are higher than the existing dwelling.

30. It was also evident from the site view that the proposed first floor addition to the garage would be highly visible from the adjoining properties to the west and south. The visual presence of the addition was acknowledged by both experts. Mr Minto says that the spatial separation of the proposed work from the dwellings on other properties is generous but in my view, that is not the assessment. The proposal, with minimal side setbacks, would put the onus on the adjoining owner to mitigate the visual impact rather than the proponent dealing with screening within the required setback. The proposal would be borrowing the spatial amenity of the adjoining property to mitigate the visual presence of the first floor addition.

31. I agree with the respondent that the objectives of the site layout controls and setback controls are not met. The objectives seek outcomes that:

1. reduce the visual impact of secondary dwellings,

2. provide for landscaped setbacks; and,

3. minimise privacy and overshadowing impacts.

32. The resultant form is a building that is not characteristic of the area. That outcome is contrary to the objectives for secondary dwellings that seek to ensure that the new secondary dwelling does not dominate the primary dwelling. The elevations from the south and west highlight the respondent’s argument that the proposed work would have a significant presence and would visually dominate the main dwelling.

33. These outcomes are not met given the bulk and scale of the proposed development. This is further exacerbated by the proximity of the proposed works to the boundary.

Is the landscaping solution acceptable?

34. The landscaping solution for the site relies heavily on a narrow strip of vegetation between an entry path to the secondary dwelling and the boundary to the adjoining neighbour. There is also a narrow strip of landscaping along the western setback which limits the ability of the proposal to meet the landscaped setback provisions of the KDCP. This is also in conflict with this area being labelled as “private open space” for the new dwelling in terms of available space and the utility of that space.

35. Overall, the reduced setbacks in this area minimise the area available for landscaping. This in turn places greater emphasis on the maintenance of that landscaping but also the ability to achieve the screening that the applicant says will be provided. I am swayed by the respondent that the landscaping solution will not provide reasonable privacy in the necessary location nor provide any significant visual relief from the proximity of the two-storey building to the boundary in such a reduced setback.

Is the privacy impact reasonable?

36. There are reasonable concerns that have been put forward by the respondent, and the objectors, that led to the conclusion that privacy impacts are unreasonable. There is an agreed position that there will be a loss of privacy from the east facing juliette balcony to the yard and the pool area of the property to the south. The applicant has not provided adequate solutions to mitigate this impact and the reduced setbacks between the driveway and the boundary make privacy difficult to achieve.

Is the private open space adequate?

37. In respect to Section 5C.2 of the KDCP, relating to private open space, the proposal has not achieved the KDCP requirements. The KDCP requires private open space contiguous with the primary living area. In this proposal, that is not provided, and as a consequence, the use of the juliette balconies, especially the east facing juliette balcony, provide the only “balcony” area on the first floor. In lieu of this space, the applicant is proposing that a ground floor area at the back of the garage is to be used.

38. The plans indicate that this area has a planter box area, a path to the swimming pool and an access point to the pool filter equipment (associated with the main dwelling). This area provides little utility and does not meet the exemption criteria for providing ground floor private open space for first floor dwellings as the area is not directly visible from the primary living area of the secondary dwelling. As the proposal has failed on the character and setbacks, I have raised this as a peripheral issue, that in my view, would also warrant resolution prior to a development consent being considered.

The conclusions

39. The respondent has adequately set out the reasoning as to why the proposal fails to meet the relevant objectives and controls relating to the proposal. The proposed new floor over the garage is not merely an extension of a benign garage use, it is a proposal for a new dwelling. This brings with it a range of interface and amenity issues that require careful consideration.

40. The respondent has demonstrated that the visual impacts, the resultant character and the amenity impacts are contrary to the local planning controls, and I agree with that argument. It is for these reasons that the appeal is dismissed and the development application is refused.

41. The Court orders that:

1. The appeal is dismissed.

2. The Development Application DA0323/22, as amended, seeking development consent for alterations and additions including a first floor addition over the existing garage for use as a secondary dwelling at Lot 2 in DP 522802 known as 6 Wattle Street Killara NSW 2071, is refused.

3. The Exhibits, apart from Exhibits A, B and 1, are returned.

S Harding

Acting Commissioner of the Court

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Decision last updated: 14 March 2024