Ben-Menashe v Ku-ring-gai Council

[2005] NSWLEC 598

Land and Environment Court

of New South Wales

CITATION:

Ben-Menashe v Ku-ring-gai Council [2005] NSWLEC 598

PARTIES:

APPLICANT
Ilan and Lynda Ben-Menashe

RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):

10748 of 2005

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Demolition of an existing dwelling - construction of attached dual occupancy - loss of amenity and environmental character - loss of contributory item - streetscape and visual impact - over-development of the site - public interest

LEGISLATION CITED:

Ku-ring-gai Planning Scheme Ordinance
State Environmental Planning Policy No. 53
State Environmental Planning Policy No. 55
Ku-ring-gai Development Control Plan 47 - Water Management
Ku-ring-gai Development Control Plan 43 - Car Parking
Ku-ring-gai Dual Occupany Development Control Code

DATES OF HEARING:

13/09/2005

 
DATE OF JUDGMENT: 

10/26/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr S Kondilious, solicitor
Instructed by Ms R Carey
Of Maddocks

RESPONDENT
Mr R Graham, solicitor
SOLICITORS
Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

26 October 2005

10748 of 2005 Ilan and Lynda Ben-Menashe v
Ku-ring-gai-Council

JUDGMENT

Background

1 This appeal is against council’s refusal of development application for the demolition of an existing dwelling and construction of an attached dual occupancy development at 41 Kissing Point Road, Turramurra.

2 The site is presently occupied by a single storey timber cottage (circa 1910), that was excised from the original allotment in a recent development that allowed subdivision and construction of a new two-storey dwelling at the rear of the site.

3 The site is included in the National Trust Urban Conservation Area: (UCA 21 – Kissing Point Road, Turramurra).

4 The issues identified for the appeal comprise:

• loss of existing amenity and environmental character of the residential zone,
• loss of a contributory item,
• streetscape and visual impact,
• overdevelopment of the site.

The site

5 The subject site is described as Lot 41 in DP 1044941. It has a total area of 706.2 sq m and a frontage of 21.69 m to Kissing Point Road. The site is subject to a Right of Carriageway and Easement for Services 4.5 m wide adjacent to the south-western boundary, a Positive Covenant and Restriction as to User 4.05 m adjacent to the north-western boundary and has the benefit of an Easement to Drain Water 1 m wide over a lot at the rear.

6 There is a mix of vegetation on the site, including mature species within the front setback area.

The proposal

7 This proposal initially involves the demolition of the timber cottage and the construction of attached dual occupancy dwellings (A & B) with a double and single garage provided to the south west corner of the building.

8 The dwellings comprise:

Dwelling A: at ground floor -single garage, family, dining, kitchen, laundry, entry and at first floor – 2 bedrooms (main bedroom with ensuite) lot bathroom and study.

Dwelling B: ground floor – double garage to front, entry, living room, dining, kitchen, family, WC, laundry and at first floor - 3 bedrooms (main bedroom with ensuite) and bathroom.

9 The proposed floor space ratio (FSR) is 0.47: 1.

10 The proposed setbacks are:

• Street (south east); combined building varies between 5.6 and 7.2 m,
• Rear (north-west); 10.9 m Dwelling B,
• Side (north-east/Dwelling B); 1.5 m ground and 2.5 m first floor,
• Side (south-west/Dwelling A); varies between 5.6 and 7 m.

Planning controls

11 Ku ring gai Planning Scheme Ordinance: under which the site is zoned Residential 2C and dual occupancy development is prohibited.

12 State Environmental Planning Policy No 53 (SEPP 53): This is the prevailing control that allows dual occupancy in the Residential C zone, subject to satisfactory amenity impacts.

State Environmental Planning Policy No 55 (SEPP 55)
Ku-ring-gai Development Control Plan 47-Water Management
Ku-ring-gai Development Control Plan 43 – Car Parking
Ku-ring-gai Dual Occupancy Development Control Code

The evidence

13 Detailed evidence on behalf of the council was presented by the council’s architected/planner Mr D Aitken. A number of objections were made to the proposal and these are contained in council’s bundle and have been considered in conjunction with the oral evidence given on-site.

14 Evidence from behalf of the applicant was presented by Mr I Glendinning, consulting town planner.

15 The primary issue in this matter concerns the character and amenity considerations relative to the context of the site. The site is located within an area defined by the Ku-ring-gai Visual Character Study as being in a 1920-1945 category (primarily of individual residencies on single lots from the 1920-1945 period). It is included in the National Trust Urban Conservation Area (UCA 21 - Kissing Point Road, Turramurra) which generally, “consists of an area of single storey 1920s and 1930s bungalows. The uniform appearance of the area stems from its well-established landscape.”

16 It is apparent from the neighbours’ objections that they do not consider this two-storey development is compatible with character of this neighbourhood. In particular they are dissatisfied with the two storey elements and front setbacks, which they do not consider is consistent with the adjoining properties, or the character of the area, resulting in unsatisfactory streetscape impacts.

17 This position is supported by Mr Aitken, who says that sites within the immediate vicinity of the subject property and on the northern side of Kissing Point Road are characterised by a generous front garden and front building line setbacks of more than 12 m. These setbacks include:

• Number 39A Kissing Point Road (split-level); where the main body of the house containing lower floor component varies between 16.5–17.5 m, and the front building wing (single storey) of the house varies between 11.8– 3.2 m.
• Number 43 Kissing Point Road (2 storey); wherefore the main body of the house containing two-storey component varies between 22-23.2 m and the front building wing of house in this between 11.8 -13.2 m.

18 Insofar as Mr Aitken acknowledges that Mr Glendinning adopts an alternative building setback line between No. 39 and No. 43, nevertheless he says that the style and characteristics of the design does not reflect or harmonise with the existing streetscape, as described in the National Trust Urban Conservation Area. Furthermore he says that:

“in a stylistic sense the designer could have extracted the larger roof forms, common to the area and provided instead attic type accommodation which would have harmonised more readily with nearby 1920’s cottages and reduced visual bulk generated by the proposed second storey"

19 Against this, Mr Glendinning acknowledges that whilst this is a difficult site in that it has an area of 706 sq m, nevertheless SEPP 53 contemplates attached dual occupancy development on sites as small as 400 sq m. Accordingly this revised proposal has:

• an acceptable FSR of 0.47:1,
• ground floor maintains the setback of existing dwelling being 5.602 m and its closest point to 7.1 m,
• the first floor is recessed to achieve setbacks from 7.5 m to 8.4 m,
• the south east elevation shown to the first floor is considerably recessed, it is well articulated with variable setbacks that progressively increase as the wall height increases.

20 The relevant planning framework for assessment of these disparate positions is contained in SEPP 53 wherein cl 32 provides a number of detailed design requirements including:

Consent must not be granted for development to which this Part applies unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the following principles:
(a) Streetscape.
The proposed development should:
(i) contribute to an attractive residential environment with clear character and identity, and
( h) Visual Bulk
The proposed development should, where practical, maintain reasonable neighbourhood amenity and appropriate residential character by:
(a) providing building setbacks that progressively increase as wall heights increase to reduce bulk and overshadowing, and
(b) using building form and siting that relate to the sites landform, and
(c) adopting building height at the street frontage that are compatible in scale with adjacent development, and …

Findings

21 The determination of the merits of this application requires adequate assessment of the site constraints and application of the design principles to achieve compatibility with the neighbourhood. Specifically, the building height at the street frontage should be compatible with adjacent development so as to make a (positive) contribution to the attractive residential environment.

22 For the assessment of this compatibility, I consider it relevant to take into account the description of the character of this neighbourhood as recognised in the National Trust listing, which identifies the relatively modest scale 1920 –1930’s cottages, in a garden setting. In doing so, I accept that the property is not a listed heritage item or located within a conservation area and therefore this listing would not be given determinative weight. Nevertheless it provides a reliable description of the character and identity of the neighbourhood to assess compatibility, in my opinion.

23 Accordingly the setback and bulk of the existing single storey cottage establishes a rhythm in the streetscape with the adjacent properties. It appears to me that this rhythm will be noticeably disrupted by the position of the two storey elements, due to the particular site constraints of the subject lot. This occurs partly because the previous development created a 4.57 m wide right of carriageway along the western boundary of the property, which restricts frontage and effective frontage and building area. Also, there is a 4.5 m wide restriction and positive covenant along the rear northern boundary, the combined effect being to reduce the effective area of the subject lot to approximately 488 sq m. These restrictions then necessitate any building seeking to optimise built upon area being shifted towards the street frontage and eastern boundary.

24 Consequently, attention is focused on the building setback and streetscape impact in Kissing Point Road. From my understanding of the evidence and observations on the view, I consider it appropriate in this case, to assess the proposal on the basis that the street frontage should reflect the building lines established by the adjacent (adjoining) properties. This is consistent with Mr Aitken's opinion, rather than Mr Glendinning’s broader interpretation of the building lines, established by reference to other further removed neighbouring properties.

25 On this basis then, the two-storey element encroaches into the setback area, to an extent that I consider unreasonable. It seems to me that opportunities for a two-storey dwelling are limited if the relatively minimal 6.8–8.5 m setback of the existing cottage is to be maintained. However the proposal further reduces this setback to approximately 5.6-7.1 m and introduces the two-storey element well forward of the notional building lines for the adjacent dwellings.

26 Even though the proposal generally adopts the existing setback for the ground floor level and provides a further setback for the first storey level, nevertheless in the context of this site, I do not consider it achieves an adequate degree of compatibility with the adjacent development, as required by SEPP 53, or that it makes a satisfactory contribution to the streetscape.

27 In this regard, I accept Mr Aitken's conclusion that:

The attached dwellings as proposed are generally inconsistent with the existing character and scale of buildings in the locality. Because of the minimal front setbacks proposed in relation to the other dwellings in the street, the two-storey building although lowered some 800 mm below natural ground level will present an overbearing visual impact upon the streetscape itself.

In terms of scale the proposed two-storey building does not relate to the more moderate scale of single storey development the same side of the street. As noted previously the western (northern) side of the Kissing Point Road contains mainly single storey dwellings with generous setbacks that allow for large expanses of front garden that make up the character of locality.

Conclusions

28 Having considered the evidence, the submissions and undertaken a view, I do not consider this application merits consent. Even though the proposal demonstrates substantial compliance with the numerical controls in SEPP 53, nevertheless reasonable compliance with the qualitative aspects is also required. Insofar as SEPP 53 overrides the controls that normally prohibit dual occupancy development on this site, it still requires due regard to the design guidelines so as to make a contribution towards an attractive residential environment with clear character and identity.

29 However, the site constraints in this case, particularly the easements on the property necessitate the two-storey elements for this proposed dual occupancy development being situated too close to the street, thereby encroaching on the building line to such an extent that the proposal results in a negative contribution towards streetscape amenity, which is not compatible with the defined attractive character and identity of this neighbourhood.

30 Insofar as reference was made to a previous appeal on this site, which resulted in the refusal of a similar two-storey attached dual development, the relatively minor amendments made to the subject proposal still do not show adequate regard to the relevant SEPP 53 design guidelines, in my assessment. Therefore the proposal should be refused.

31 Therefore the orders of the Court are:

1. The appeal is dismissed.
2. Development consent to DA 0447/05 for a dual occupancy development at 41 Kissing Point Road, Turramurra, is refused.
3. The exhibits may be returned except for Exhibits. 2, 3, A, and F.
4. No order as to costs.

_______________________
R Hussey
Commissioner of the Court
rjs