Arkibuilt v Ku-ring-gai Council

[2005] NSWLEC 728

Land and Environment Court

of New South Wales

CITATION:

Arkibuilt v Ku-ring-gai Council [2005] NSWLEC 728

PARTIES:

APPLICANT
Arkibuilt Pty Limited

RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):

10611 of 2005

CORAM:

Brown C - Tuor C

KEY ISSUES:

Development Application :- demolition of all improvements and the erection of a multi-unit housing development - building setbacks - building width - building separation

LEGISLATION CITED:

Ku-ring-gai Planning Scheme Ordinance
Ku-ring-gai Local Environmental Plan 194

DATES OF HEARING:

2, 3 /11/2005

 
DATE OF JUDGMENT: 

12/23/2005

EX TEMPORE JUDGMENT DATE:

11/04/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr P Tomasetti, barrister

RESPONDENT
Mr P Rigg, solicitor
SOLICITORS
Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C with Tuor C

23 December 2005

10611 of 2005 Arkibuilt Pty Limited v Ku-ring-gai Council

JUDGMENT

1 COMMISSIONERS: This is an appeal against the refusal by Ku-ring-gai Council (the council) of DA 282/05 for the demolition of all improvements and the erection of a multi-unit housing development at 2 - 8 Milray Street and 10 Havilah Lane, Lindfield (the site).

2 The proceedings were heard on 2 and 3 November 2005 and judgement given on 4 November 2005 subject to the conditions being amended to reflect the findings in the judgement. On 16 December 2005 the parties were directed to attend a Mention, as the conditions had not been provided to the Court. Notwithstanding the Courts findings, the parties were still in dispute over conditions 75 and 76. The parties were directed to file their preferred conditions by close of business on 16 December 2005 for the Courts consideration.

The site

3 The site is located on the eastern side of the Pacific Highway/railway corridor and is directly adjacent to the Lindfield commercial precinct. It is bounded by Milray Street to the north-west, Havilah Lane to the south-west, Kochia Lane to the south-east and No. 10 Milray Street to the north-west. Milray Street is the principal address to the site. Both Kochia Lane and Havilah Lane are service roads. Kochia Lane is a narrow driveway providing vehicular access to a public carpark. The site is rectangular in shape and has a total area of 6672 sq m. The frontages to Milray Street, Havilah Lane and Kochia Lane are 90.71 m, 91.72 m and 73.15 m respectively.

4 The site is gently sloping with a fall of approximately 4 m from the western boundary with Havilah Lane through to the eastern boundary with Milray Street. The site is characterised by a range of vegetation species including stands of native trees such as turpentines and eucalypts as well as exotic and weed species.

The proposal

5 The application seeks the demolition of the existing dwellings and associated structures, the consolidation of the existing allotments and subdivision of the land to create two lots, Lot A and Lot B. The application further seeks the construction of 6 x 5-storey residential flat buildings providing 72 dwellings, comprising 12 x 2-bedroom apartments, 16 x 2-bedroom and study apartments, and 41 x 3-bedroom apartments. A total of 123 parking spaces are to be provided on-site, consisting of the 104 residents’ spaces and 19 visitor spaces. The carparking will be contained in two basement carparks. Lot A and Lot B will each contain one basement carpark. Vehicular access to the site is proposed to be provided via driveways in Milray Street with entry/exit driveways located adjacent to the eastern and western boundaries of the site.

Relevant planning controls

6 The site is zoned Residential 2(d3) under the Ku-ring-gai Planning Scheme Ordinance as amended by Local Environmental Plan 194. Clause 25I provides development standards and site requirements for multi-unit housing. The relevant development standards relate to deep soil landscaping, minimum street frontages, maximum number of storeys, maximum site coverage, floor area for top storey and carparking. There was no dispute that the proposal satisfied the development standards in cl 25I. Clause 25I(1) provides a number of matters that have to be considered before consent is granted.

7 Development Control Plan No. 55 Railway - Pacific/Highway Corridor and St Ives Centre (DCP 55) also applies. Clause 1.6 provides general aims of the plan; cl 2 provides elements of good design; cl 3.2 provides desired future character; cl 3.3 provides landscape and visual character; cl 4.2 provides density or floor space ratio requirements; cl 4.3 provides setbacks; cl 4.4 built form and articulation and cl 4.5 residential amenity. DCP 55 is also subject of amendment (the amending DCP) with the amendments being advertised, considered by the council, but deferred with no decision being made on their ultimate form.

The issues

8 The council filed an Amended Statement of Issues containing nine issues and a number of sub-issues. Following conferencing between the town planning experts for both sides a number of issues were not pressed by the council or the departures were not so significant that they would warrant the refusal of the application. These were the issues relating to the amount of deep soil planting (Issue 1), the building wall plane (Issue 2(i)), the removal of a street tree (Issue 5), direct access to courtyards (Issue 5(b)), subdivision (Issue 6) and disabled access (Issue 9).

9 The remaining issues can be conveniently grouped into the following main areas:

1. whether the streetscape impact is acceptable on the Milray Street, Havilah Lane and Kochia Lane frontages, particularly considering whether the built form dominates the landscape.
2. whether the buildings provide an acceptable separation.
3. whether the buildings are excessive in width.
The evidence

10 Mr Mark Leotta provided town planning evidence for the council and Mr Andrew Minto town planning evidence for the applicant. The applicant provided further evidence from Ms Melanie Howard, an arborist; Mr John Cody, traffic engineer; and Mr John Haritopoulos, the project architect.

11 Mr Geoff Bird, the council landscape architect, provided evidence at the site view as did local residents Mr Ian Cairns of 10 and 12 Milray Street; Mr Peter Hoggard of 14 Milray Street; Mr Angus Horder of 20/12 Tryon Street; Ms Lisa Robinson of 3 Havilah Road; Mr Murray Allen of 10 Havilah Road and Mr Albert Chia of 2 Milray Street. The issues raised by the residents generally reflected the active issues dealing with the adequacy of the setbacks, the maintenance of the landscaped character of the area, building separation and overall design.

Building setbacks

12 The setback of the buildings to Milray Street, Havilah Lane and Kochia Lane was the significant issue in the proceedings. Clause 4.3 C-1 of DCP 55 provides setback requirements. Street boundary setbacks are set at 12 m, although 40% of the area between 10 m and 12 m may be occupied by the building footprint. Where the road reserve is less than 12 m the setback may be reduced proportionally but not less than 6 m. The definition of “setback” in DCP 55 provides that the distance is measured to the external plane of the building, including balconies.

Milray Street setback

13 The Milray Street setback varies as anticipated by cl 4.3 C-1 of DCP 55. Balconies extend within the 10 m setback but the plane of the building complies with the 12 m setback with reductions in the setback up to 10 m. In our opinion the encroachment of the balconies by 500 mm to 700 mm does not impact on the integrity of the setback and its objectives. The encroachment is limited in its length and does not restrict the opportunity for effective landscaping or create a situation where the built form could be seen to dominate the landscape.

14 There is also a non-compliance in a small area near the Kochia Lane corner of the site. The setback is reduced to around 9 m in this location however it extends for a distance of only some 7 m. This encroachment is not overly noticeable in the streetscape and does not diminish the opportunity to screen the building and soften the urban form. We accept the design objectives 0-1, 0-2 and 0-4 are satisfactorily addressed by the building setback to Milray Street. We note that this was a conclusion reached by the council’s landscape architect, Mr Bird.

Kochia Lane setback

15 The setback to Kochia Lane is a minimum of 6 m with some building setback distances ranging between 8 m and 9 m. DCP 55 requires a 6 m building setback, whereas the amending DCP require a 12 m building setback. Putting aside the status of the amending DCP we are of the view that the proposed setback is appropriate. This elevation adjoins Kochia Lane. This lane is partly used for vehicular access to a council carpark and partly used for pedestrian access to Milray Street. There are commercial buildings on the opposite side of the public carpark but at a significant distance from the site. Considering the use of the area adjoining the Kochia Lane frontage and the requirements in cl 4.3 C-1(a) that allow a setback to be reduced where the road is less than 12 m, we accept that the relevant design objectives for the setback to this frontage are satisfied. We are mindful that this elevation is the interface with the adjoining commercial zone, and in this context the setback and proposed landscaping are acceptable.

16 Even though the entry driveway off Milray Street, adjoining Kochia Lane, provides no opportunity for landscape screening and is a negative feature of the development, is not so significant that it would warrant the refusal or amendment, particularly considering the limited options for redesign.

Havilah Lane setback

17 The Havilah Lane setback under DCP 55 is 12 m however the amending DCP proposes a 6 m setback. The proposal generally satisfies the 6 m setback with the exception of the entry areas for Buildings C and D and the unit on the corner of Kochia Lane in Building B. The entry areas are not significant structures and are relatively small. They add some interest to the elevations without overly imposing on the setback area. The area occupied by these features is also not likely to impact on the ability to landscape the setback.

18 Mr Minto stated that the encroachment of the unit on the corner of Kochia Lane and Havilah Lane was designed to reinforce the corner. This feature responds to the design requirements on the opposite side of Havilah Lane that propose a nil setback. Mr Leotta urged the Court not to adopt the design requirements on the opposite side as any form of guide as the design requirements were not formulated by the council but by the Minister.

19 In considering the competing opinions of Mr Minto and Mr Leotta, we are more persuaded by the evidence of Mr Minto. The only noticeable departure from the setback requirement is the unit at the corner of Havilah Lane and Kochia Lane. In our view, the proposed location will respond appropriately to the likely form of development on the opposite side of Havilah Lane, while still providing an acceptable area for landscaping along the rest of the lane frontage. Even though the design requirements for any redevelopment of the site opposite are not what the council would have chosen, they will nonetheless form part of the character of that part of Lindfield. With the retention of the existing stand of trees on this frontage Mr Bird accepted that the setback area could be adequately landscaped. We concur with his conclusion and accept that the relevant design objectives in cl 4.3 are satisfactorily addressed. We again note that this elevation is at the interface with a mixed commercial residential zone.

Building width

20 Clause 4.3 C-3 of DCP 55 provides that the width of a single building on any elevation facing the street shall not exceed 36 m. Building A has a width of 46 m and building B has a width of 40 m.

21 Mr Minto stated that cl 4.4 C-4 provides for buildings with a width in excess of 36 m. The clause allows for that portion of the building that exceeds the 36 m requirement to be accepted if it is sufficiently recessed and/or articulated so as to present to the street as a single building. Mr Minto maintained that Building A satisfies this requirement.

22 Mr Leotta disagrees. He states that the width of the building, combined with the inadequate setbacks, creates an unacceptable spatial relationship on the Milray Street frontage.

23 On this matter we agree with Mr Minto. The building does provide a change in the design around the 33 m width mark with an entry area and different articulation and detail. In our view this is sufficient to obtain the relief available in cl 4.4 C-4.

24 Building B exceeds the 36 m requirement by 4 m. In our view this departure is minor at best and any difference is not likely to be noticeable in the streetscape, particularly with the proposed levels of articulation and design.

25 In both cases we can comfortably conclude that the relevant design objectives in cl 4.4 of DCP 55 are satisfactorily addressed by the proposal, and that the departures can be justified.

Building separation

26 Clause 4.5.2 of DCP 55 provides for a building separation ranging between 6 m and 12 m, depending on whether the rooms in question are habitable or non-habitable rooms. Mr Minto and Mr Leotta conferred on the non-compliance with the requirements in cl 4.5.2. The most significant breaches occurred on the upper level between balconies. The breaches on the lower levels related mainly to potential overlooking from bathroom and laundry windows. At the upper level Mr Minto proposed a range of solutions including privacy screens, planter boxes and making some parts of the balcony areas non-habitable. The lower windows were addressed through angled privacy screens on the outside of the windows. In Mr Minto’s opinion these measures addressed any concerns over privacy.

27 Mr Leotta maintained that the non-compliances were symptomatic of a poor design and that the measures suggested by Mr Minto did not address the fundamental problem.

28 On this issue we agree with Mr Minto. Importantly, the number of areas where measures are required to address building separation and privacy issues are relatively small considering the size of the development. Also the proposed solutions do not unacceptably impact on the overall design of the development.

29 As required by cl 25I(1) we have considered the matters raised in this clause. Mr Leotta was particularly concerned that the departures unacceptably impact on the spatial relationship between the built form, the streetscape, and the ability to provide an acceptable level of landscaping. Using the words in cl 25I(e) he considered that the building form dominated the landscape.

30 In our opinion the level of landscaping was not unduly affected by the variations to the setback requirements to the point where the application should be refused or amended. We consequently find that the proposal satisfactorily addresses the heads of consideration in cl 25I(1)(c), (d) and (d).

Conditions

31 At the hearing there was agreement on the council’s draft conditions with the exception of condition 76 where four trees located on the road reserve required the lodgement of bonds against potential damage.

32 Mr Tomasetti for the applicant maintained that there was no power for the bonds to be placed on the trees pursuant to s 80(A)(6) of the Environmental Planning and Assessment Act. As an alternative he offered conditions that would require the replacement of the trees if damaged during construction. We accepted Mr Tomasetti’s alternative to the conditions imposed by the council as an appropriate way of dealing with potential damage to the existing street trees however these were still disputed by the council.

33 The conditions still in dispute are conditions 75 and 76.

34 Condition 75 requires landscape works to be installed in accordance with the approved landscape plan. The council requires that the landscape works "must be constructed by landscape professional" and that the landscape works must be maintained "for a minimum establishment period of 12 months".

35 We accept the requirement that the landscape works must be constructed by a landscape professional is unenforceable, as it is not defined. In any event the landscape works are to be constructed in accordance with the approved landscape plan. We also accept that additional requirements of the council are unnecessary as the applicant is willing to accept a condition that the landscaping works are to be maintained for a period of 12 months.

36 Condition 76 relates to the protection of existing vegetation. The council requires that specified trees "are maintained in the same condition as found prior to commencement of site and development work". The applicant maintains that this is unreasonable considering possible damage to trees during construction. The applicant proposes that if any of the specified trees dies it is to be replaced "with a semi advanced tree of the same species".

37 We accept the applicant’s version of condition 76, as it is a practical solution to any potential problem. We also note that conditions 92, 93 and 94 require specific measures to protect trees however not for all the trees identified in condition 76.

Orders

38 For the foregoing reasons the orders of the Court are:

1. The appeal is upheld.
2. DA 282/05 for the demolition of all existing structures in the erection of a multi-unit housing development at 20-8 Milray Street and 10 Havilah Lane, Lindfield, is approved subject to the conditions in Annexure A.
3. The exhibits are returned with the exception of Exhibits 1, 2, 6, D and F.
4. No order as to costs.

___________________

G T Brown
Commissioner of the Court
on behalf of
Annelise Tuor
Commissioner of the Court
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