BCE Investments Pty Ltd v Ku-ring-gai Council

[2006] NSWLEC 440

Land and Environment Court

of New South Wales

CITATION:

Dimensional Capital Design Pty Ltd v Sutherland Shire Council [2006] NSWLEC 440

PARTIES:

APPLICANT
Dimensional Capital Design Pty Ltd

RESPONDENT
Sutherland Shire Council

FILE NUMBER(S):

11475 of 2005

CORAM:

Bly C

KEY ISSUES:

Development Application :- Demolition of dwellings and construction of townhouses, streetscape, built upon areas, internal amenity, privacy, solar access, floor space ratio

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No. 1 - Development Standards
Sutherland Local Environmental Plan 2000
Draft Sutherland Local Environmental Plan 2004
Development Control Plan for Townhouses and Villa Houses

DATES OF HEARING:

18-19/10/2006

 
DATE OF JUDGMENT: 

11/30/2006

LEGAL REPRESENTATIVES:

APPLICANT
Ms S Duggan, barrister
Instructed by: Ms R Spiegel, solicitor
SOLICITORS
Spiegel & Associates

RESPONDENT
Mr J Cole, solicitor,
SOLICITORS
Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

30 November 2006

Sutherland Shire Council

JUDGMENT

Introduction

1 This appeal relates to Development Application No. 04/1219, which is for the demolition of four detached dwellings and the construction of 13 townhouses in four rows of two-storey buildings at 844-846 Kingsway and 31-33 Durbar Avenue, Kirrawee. Car parking is to be provided in a basement car park with access off Durbar Avenue.

2 The rectangular shaped site comprising Lots 9, 10, 13 and 14 in DP 6594 has a southern frontage of 30 m to Durbar Avenue and a northern frontage of 79 m to Kingsway. It has an area of 2,420 sq m. Topographically the site has an even fall of about 2.5 m from south to north with a slight cross fall of about 800 mm. There are several large trees within and adjoining the site.

3 Development in the locality mainly comprises older style detached dwelling houses and a recently constructed townhouse development. A primary school, a technical college and industrial development are located close by.

Planning controls

4 Under Sutherland Local Environmental Plan 2000 (“the LEP”), the site is zoned 2(b) Residential and in this zone the proposed development is permissible with development consent. The objectives of the zone comprise:

A medium density residential environment:
(a) that provides a graduation between high and low-density residential areas, and
(b) with co-ordinated, efficient and economical development of villas and townhouses to ensure high-quality design outcomes, and
(c) …

5 Clause 30 of the LEP requires that the impact of proposed residential development is to be assessed and that the consent authority must take into consideration certain matters and must not grant consent unless those matters have been adequately addressed by appropriate documentation. Such matters relevantly comprise:

(a) The impact that the proposed development may have on adjoining development, buildings and open space from loss of sunlight, views and privacy,
(b) The effect of the proposed development on the quality of the streetscape,
(c) The cumulative impact of successive development on the general character of the neighbourhood,
(d) The impact of the proposed development on adjoining properties in terms of size, bulk, height and amount of landscaped area,
(e) The retention and enhancement of existing vegetation,
(f) Any adverse impact on the natural and built environment,

6 Also applicable to the site is the Development Control Plan for Townhouses and Villa Houses in 2(b) and 2(c) Residential Zones (“the DCP”).

7 Also relevant is the draft Sutherland Shire Local Environmental Plan 2004 (“the draft LEP”), which has been advertised. At this time the draft LEP is the subject of discussions between the council and the Department of Planning. Given these ongoing discussions, the making of the draft LEP or its gazettal cannot be considered to be either certain or imminent. In these circumstances the draft LEP and the associated draft development control plan attract little weight.

Advertising and council's decision

8 The application was advertised and a number of objections were received expressing concerns including: overdevelopment of the site; overshadowing of neighbouring properties; out of character with the area; car parking and traffic concerns; and undesirable external appearance.

9 The application was refused by notice of determination dated 9 December 2004, citing reasons relating to: impacts on the streetscape; excessive built upon areas; unsatisfactory internal amenity including aspects of privacy and solar access; unsatisfactory vehicle manoeuvring arrangements in the basement; and excessive floor space ratio. A subsequent application under s 82A of the Environmental Planning and Assessment Act 1979 was refused for similar reasons.

Expert evidence

10 On behalf of the respondent council expert evidence was given by:

• Miss D Pinfold - town planner,
• Mr P Anderson - engineer,
• Mr M Lucchitti - architect,
• Mr D Sheils – arborist and landscape architect

11 On behalf of the applicant expert evidence was given by:

• Mr M Harrison – architect and urban design consultant
• Mr R Wallman - arborist and landscape designer.

The issues

12 Having inspected the site and its environs and having considered the evidence the following important issues emerged:

• Whether the proposed landscaped areas are sufficient in area and configuration.
• Whether the character of the proposal comprising four rows of townhouses would be appropriate in the locality and the streetscape.
• Whether the separation between the dwellings and their orientation results in an inappropriate level of amenity for the private courtyards particularly taking into account solar access and size.

• Whether the internal amenity of some dwellings would be unreasonable taking into account the absence of outlook and their size.

  Floor space ratio

13 In her report Miss Pinfold noted that the proposal has a floor space ratio in excess of that contained in cl 35(2) of the LEP and that the objection under State Environmental Planning Policy No. 1 - Development Standards ("SEPP 1") could be accepted. In this regard she makes reference to a draft amendment to the LEP that will exclude basement circulation areas from the calculation of gross floor area, which areas are presently required to be included in the calculation. With the exclusion of these areas there would be no exceedence. On this basis, and taking into account the reasoning contained within the objection itself, I accept it.

Landscaped area

14 Clause 36(2) of the LEP relevantly requires that a minimum of 40% of the site be set aside as landscaped area. The associated objectives provide for the preservation and enhancement of tree canopy and a balance between unbuilt upon areas and built form as well as the facilitation of the provision of appropriate private open space. There are numerous related detailed objectives in the DCP, which have a similar effect.

15 According to Miss Pinfold the proposal achieves a landscaped area of 37% (a deficiency of about 175 sq m) thus failing to meet the development standard. In this context her calculation excludes, as required, those parts of the site occupied by buildings, driveways, service access ways, parking areas, communal drying yards, garbage storage areas, swimming pools, balconies or decks. For the most part I accept her analysis, although I do not agree that all of the access corridors should be simply categorised as service corridors and thus completely disregarded, notwithstanding council's guidelines for calculating landscaped area. This is because they contribute to a sense of openness within the site and facilitate the spreading canopies of landscape plantings. I am nevertheless satisfied that the development standard has not been met.

16 An SEPP 1 objection has been provided which, whilst arguing that the development standard is complied with, nevertheless provides argument in support of the non-compliance. The objection concludes that the proposal meets the objectives of the standard particularly in relation to: tree retention and tree planting; the balance between un-built upon areas and built form; and the provision of impervious areas to limit urban runoff. This conclusion takes into account not only those areas that are said by the council to fall within the definition of landscaped area but also other open areas such as pathways that otherwise contribute. Also taken into account here are plantings on structures at or near finished ground level.

17 Although the objectives of the development standard might be met by the proposal this does not mean that the non-compliance with the standard is unreasonable or unnecessary in the circumstances of the case. In this regard the site is clearly unconstrained and hence there is a reasonable expectation that the standard should be complied with. Whilst I do not accept that the landscaped area deficiency is as much as 175 sq m, I agree that a better outcome is required. It was submitted on behalf of the applicant that should I reach this conclusion it would agree to a condition requiring the deletion of Unit 7 and its replacement with landscaped area. Whilst I do not know with any certainty whether this would result in complete compliance with the landscaped area requirement I am satisfied that, taking an overview of the development that its quantum would be sufficient if Unit 7 is deleted.

18 Also, in relation to landscaping generally I note that the landscape experts have now agreed that the significant trees on the site can be retained. Despite this some concerns were raised regarding the configuration of the landscaping scheme particularly in relation to perimeter planting, notwithstanding that the DCP requires the provision of open space around the buildings. In this regard I am satisfied, accepting as I do the evidence of Mr Wallman that the landscape scheme for the site including additional canopy trees will be appropriately responsive to streetscape requirements. This includes cl 30(b), (d) and (e) of the LEP (to the extent that these requirements apply) and the landscaped area objectives including the need to ensure that landscaped areas are in balance with the built form.

19 In these circumstances and on the assumption that there continues to be a deficiency in the landscaped area as required by cl 32, I accept the SEPP 1 objection.

Streetscape and design generally

20 Clause 30(b) and (f) of the LEP require consideration of the effect of the proposed development on the streetscape and the built environment. In this regard Mr Lucchitti was concerned that the presentation of the development to Durbar Street was unsatisfactory because of the design of the basement entry. He maintained his concerns notwithstanding a number of recent design changes mainly relating to the basement entry.

21 Conversely Mr Harrison, having considered these changes including the details provided in relation to materials and finishes believed that the streetscape presentation of the two dwellings and the driveway would be satisfactory. He nevertheless suggested that the impact of the driveway could be reduced by reducing its 6 m width to 4.5 m. More generally he also commented that 13 townhouses on the site of this size was not unreasonable in the 2(c) Zone.

22 Mr Anderson was of the opinion that narrowing the driveway would be problematical in that entering and leaving vehicles would have difficulty passing each other safely. Despite this I generally agree with Mr Harrison and accept that, at the upper level the driveway could be reduced in width by about 0.5 m without any serious impact on the manoeuvrability of vehicles on and at the bottom of the ramp.

23 Taking into account the conclusions I have already reached in relation to landscaped area and floor space ratio I accept that the proposal does not have an excessive built form or is excessive in its site coverage. In relation to the presentation of the development to Durbar Street I acknowledge that this development especially in relation to the basement access, will, have a different architectural character to that presently existing taking into account various aspects of built form and recently renovated houses in the street. However, I do not accept that this is a reason to refuse the application, accepting as I do the evidence of Mr Harrison as to the satisfactory nature of the proposal in the streetscape.

Internal amenity

24 The development comprises four east-west rows of buildings with the dwellings contained therein each having at least a northern and southern elevation. Separation between the buildings ranges between about 6.5 m and 10.7 m.

25 It was argued by Miss Pinfold that the separation between the rows of buildings is insufficient and that the built form configuration results in an unsatisfactory level of amenity for a number of the dwellings and their private open space. Of particular concern is the significant overshadowing of the main courtyards for Units 1 - 10 (9 units) in midwinter especially if the development of neighbouring properties is taken into account. In this regard she provided a table that shows the extent solar access into the courtyards and the extent of compliance/non-compliance with the requirements of the DCP. She subsequently recognised that Units 3 and 4 are likely to benefit from the deletion of Unit 7.

26 Miss Pinfold accepted that it was only Unit 1 that does not comply with the minimum open space requirements in the DCP but that this was a matter of concern especially as this is one of only two three-bedroom dwellings in the proposal. The three-bedroom dwellings will most likely be occupied by families hence an appropriate provision of private open space is essential. Also of concern to her and to Mr Lucchitti is the size of the dwellings which have areas ranging between 104 sq m and 149 sq m and the absence of outlook for some of them.

27 All of the proposed dwellings have north facing living rooms, which open onto their private courtyards and these living rooms will get good solar access. Plainly the internal dwellings within the development will only have an outlook onto their own private open space although the dwellings fronting Kingsway and Durbar Avenue will have an outlook beyond the site. Despite the solar access deficiencies of some courtyards, I accept the evidence of Mr Harrison that, overall, the living amenity of the dwellings and their courtyards will be satisfactory.

28 The dwellings are relatively small and will as a consequence be more affordable. Whilst I accept that the living areas in these dwellings will be relatively inflexible in terms of furniture layouts I do not accept that they are too small or so small as to be unacceptable.

29 The units all have additional south facing courtyards, which are, apart from the Durbar Avenue units, service courtyards. These courtyards are utilised for clothes drying and were criticised because of their lack of solar access in winter. However, these matters are not of such significance as to require the refusal of the application.

Conclusion

30 Zone objective (a) provides for a graduation between the lower density 2(a) zones and the higher density 2(c) zone rather than for a graduation between different densities within the zone itself. Despite this, consideration of any new development in the 2(b) zone needs to include its relationship with existing development although this must attract less weight than the ultimate intention of the zone, which is to facilitate villa and townhouse development. In this context, the matters for consideration in cl 30 of the LEP are relevant but these matters must be applied in the light of the zone objectives.

31 Taking into account that the amended plans provide for the retention of significant canopy trees on the site and the further provision of canopy trees and including the additional opportunities for landscaping within the site with the deletion of Unit 7 I am satisfied that the proposal now provides an appropriate balance between built upon and unbuilt upon areas and that the landscaping provides an appropriate setting for this development.

32 I am now satisfied that the objectives of the zone are met by the proposal and that insofar as they are applicable the requirements of clause 30 of the LEP are also met.

33 Finally, in relation to suggestions that this proposal would, in a cumulative sense adversely affect the character of the neighbourhood, I heard no evidence to sustain this argument. There is one other nearby townhouse development, which will be different to this proposal, but I do not accept that when considered together there would be any associated adverse consequences. Moreover, any future medium density developments will inevitably change the character of this area but as with this development they need to be dealt with on their own merits in the context of the applicable planning controls.

Conditions

34 The only condition in dispute is condition 8(a) which requires in effect that there be a single communal garbage area for all dwellings, which is to be serviced of Durbar Street. This is required by the council because the site's Kingsway frontage comprises part of a slip lane providing vehicular access off Kingsway towards the Princes Highway and the resulting difficulties in collecting rubbish and recycling bins. I recognise the distances involved for the residents of the units fronting Kingsway in transferring their garbage and recyclables to the enclosure near the driveway. However, I accept that the Kingsway traffic aspects including safety and efficiency should prevail and hence the condition should remain.

35 As a consequence of my decision that Unit 7 is deleted a new condition 8(c) is to be imposed to this effect and requiring that the resultant unbuilt upon area is to be appropriately landscaped.

Orders

36 The orders of the Court are therefore:

1. The appeal is upheld.
2. Development Application No. 04/1219 for the demolition of four dwellings and the construction of 13 townhouses in four rows of two-storey buildings above a basement car park at 844-846 Kingsway and 31-33 Durbar Avenue, Kirrawee, is determined by the granting of development consent subject to the conditions in Annexure “A” hereto.
3. Exhibits 11, A, M and L are retained.

___________________
T A Bly
Commissioner of the Court
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