Blake v Ku-ring-gai Council

[2016] NSWLEC 1265

Land and Environment Court

New South Wales

Medium Neutral Citation:	Blake v Ku-ring-gai Council [2016] NSWLEC 1265
Hearing dates:	7-9 June 2016
Date of orders:	28 June 2016
Decision date:	28 June 2016
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1. The appeal is dismissed. 2. Development Application No. 442/14 for demolition of existing structures and construction of a multi-dwelling housing development consisting of six townhouses over basement parking at 7 Duff Street, Turramurra, is refused. 3. The exhibits, other than exhibit 6 and S, are returned.
Catchwords:	DEVELOPMENT APPLICATION: multi-dwelling housing development; impact on trees and biodiversity; internal amenity; economic and orderly development of adjoining site.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Mr Peter Blake (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel: Mr A. Pickles SC (Applicant) Ms J. Reid barrister (Respondent) Solicitors: Apex Planning and Environmental Law (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2016/162142 (formerly 10744 of 2015)

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 442/14 for the demolition of existing structures and construction of multi-dwelling housing development consisting of six townhouses over two levels of basement parking (the proposal) at 7 Duff Street, Turramurra (the site) by Ku-ring-gai Council (the Council).

2. The appeal was subject to mandatory conciliation on 1 December 2015, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 4 February 2016, pursuant to s 34(4) of the LEC Act. The proposal was amended following the termination of the conciliation conference and leave was granted by the Court on 21 March 2016 for the applicant to rely on the amended proposal.

3. Leave was granted by the Court at the commencement of the hearing for the applicant to rely on a further amended proposal, revision C (exhibit A). The leave sought was unopposed by the Council, subject to s 97B of the EPA Act. Further minor amendments and corrections were made to the architectural plans during the hearing in response to expert evidence to correct errors and inconsistencies and resolve some of the contentions, resulting in two further tenders of architectural plans revision D (exhibits Q and S). The proposal referred to in the judgment is the proposal documented in exhibit S.

Issues

4. The Council’s contentions in the matter can be summarised as:

• The proposal is not suitable for the site due to the significant departure by the proposal of the minimum street frontage dimension of the development standard ‘site requirements for multi-dwelling housing’;

• The proposal encroaches on the tree protection zone of Tree 1 and will have an adverse impact on the tree, which is a remnant Sydney Blue Gum of the Blue Gum High Forest endangered ecological community and of conservation significance;

• The proposal result in a poor level of amenity for future residents of the development;

• The proposal provides insufficient deep soil area;

• The basement design is inadequate; and

• The proposal will impact on the orderly and economic development of the adjoining property at 5 Duff Street.

The site and its context

5. The site is on the north-western side of Duff Street, Turramurra, between Allan Avenue and Pacific Highway. The site falls steeply from east to west. The site is 1309sqm in area and contains a single dwelling.

6. 5 Duff Street to the north-east of the site contains a two and three storey dwelling and 9 Duff Street to the south-west of the site contains a two storey contemporary dwelling.

The proposal

7. The proposal (exhibit S) is for the demolition of existing structures and construction of six townhouses over two levels of basement parking. There are five 3 bedroom townhouses over three levels and one 2 bedroom townhouse over two levels. Unit 1 is an accessible unit. The townhouses are divided into two buildings, with Block A (units 1, 2 and 3) adjacent to Duff Street and positioned over two and three levels above the basement (Ground, First and Attic); and Block B (units 4, 5 and 6) to the rear, positioned over three levels, with the attic levels of units 5 and 6 on the same level as the first floor of Block A.

Resident evidence

8. Three resident objectors provided evidence on site at the commencement of the hearing and the Court, in the company of the parties and their experts, viewed the site from an elevated side verandah of 5 Duff Street. The residents provided further written submissions on the second day of the hearing regarding revision C version of the drawings (exhibit A), as they first saw the amended proposal shortly before the hearing commenced on-site. The objections of the residents can be summarised as:

• The site and 5 Duff Street are zoned R3 Medium Density Residential under Ku-ring-gai Council’s Local Environment Plan (Local Centres) 2012 (LEP 2012) and the proposal will isolate and impinge on the development potential of 5 Duff Street, as the two properties are the only properties zoned R3 for the purpose of providing a transition from the R4 zone fronting Pacific Highway to the E4 zone.

• The property adjacent to the site at 9 Duff Street is zoned E4 Environmental Living and the site therefore forms a zone boundary. Any development on the site should not simply achieve the minimum amenity impacts for development in the R3 zone, but should provide an adequate setback on the adjoining dwelling in acknowledgment of the change in zone between the two allotments.

• The proposal will overshadow and overlook the adjoining dwelling at 9 Duff Street.

• The proposal is an overdevelopment of the site.

• The proposal will impact on the on-street parking in Duff Street which is also used by commuters for parking as Turramurra Rail Station is nearby.

Planning framework

9. The parties agree that State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) (amendment 2) applies to the proposal by dint of the savings provision in amendment 3 at sub-cl 31(2) and the application of the policy in cl 4 of amendment 2, which applies the policy to residential development of 3 storeys or more with 4 or more dwellings. The parties agree that the proposal would not be caught by cl 4 in SEPP 65 (amendment 3). For that reason, Council does not press any contentions in relation to SEPP 65 and submits that built form and amenity issues are instead dealt with in relation to the objectives and controls in Council’s Development Control Plan. An analysis of the proposal in relation to the design principles in SEPP 65 has been carried out by Mr Zanardo on behalf of the Council and is in evidence (exhibit 8), as is the architect’s design verification statement (exhibit M).

10. The site is zoned R3 Medium Density Residential under LEP 2012 and the proposal is permissible with consent. The objectives of the R3 zone are:

• To provide for the housing needs of the community within a medium density residential environment.

• To provide a variety of housing types within a medium density residential environment.

• To provide a transition between low density residential housing and higher density forms of development.

11. The proposal has a floor space ratio (FSR) of 0.65:1 and complies with the FSR development standard in LEP 2012 of 0.8:1 (Floor Space Ratio Map - Sheet FSR_007A LEP 2012). The proposal complies with the maximum building height development standard in LEP 2012 of 11.5m (Height of Buildings Map – Sheet HOB_007A LEP 2012).

12. Clause 4.6 of LEP 2012 provides an appropriate degree of flexibility in applying certain development standards to particular development with the objective of achieving better outcomes for and from development by allowing flexibility in particular circumstances, as follows:

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.

13. The site is identified as containing an area of biodiversity significance (Natural Resource - Biodiversity Map Sheet BIO_007A LEP 2012). Clause 6.3 of LEP 2012 for the protection of biodiversity relevantly includes the following:

(1) The objective of this clause is to protect, maintain and improve the diversity and condition of native vegetation and habitat, including:

(a) protecting biological diversity of native fauna and flora, and

(b) protecting the ecological processes necessary for their continued existence, and

(c) encouraging the recovery of threatened species, communities, populations and their habitats, and

(d) protecting, restoring and enhancing biodiversity corridors.

(2) This clause applies to land identified as “Areas of Biodiversity Significance” on the Natural Resource—Biodiversity Map.

(3) Before determining a development application for development on land to which this clause applies, the consent authority must consider:

(a) the impact of the proposed development on the following:

(i) any native vegetation community,

(ii) the habitat of any threatened species, population or ecological community,

(iii) any regionally significant species of plant, animal or habitat,

(iv) any biodiversity corridor,

(b) any proposed measure to be undertaken to ameliorate any potential adverse environmental impact, and

(c) any opportunity to restore or enhance remnant vegetation, habitat and biodiversity corridors.

(4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development:

(a) is consistent with the objectives of this clause, and

(b) is designed, and will be sited and managed, to avoid any potentially adverse environmental impact or, if a potentially adverse environmental impact cannot be avoided:

(i) the development minimises disturbance and adverse impacts on remnant vegetation communities, habitat and threatened species and populations, and

(ii) measures have been considered to maintain native vegetation and habitat in parcels of a size, condition and configuration that will facilitate biodiversity protection and native flora and fauna movement through biodiversity corridors, and

(iii) the development avoids clearing steep slopes and facilitates the stability of the land, and

(iv) measures have been considered to achieve no net loss of significant vegetation or habitat.

14. The objectives for site requirements for multi-dwelling housing at cl 6.5 of LEP 2012 are:

(1) The objectives of this clause are:

(a) to provide site requirements for development for the purposes of multi dwelling housing and residential flat buildings so as to provide for the orderly and economic development of residential land while maintaining the local character, and

(b) to ensure that lot sizes and dimensions of medium and high density residential sites allow for generous landscaped areas and setbacks to ensure the amenity of adjoining properties and to support the desired future character of those areas.

15. Development consent must not be granted for the erection of multi dwelling housing on a lot unless the lot has an area of at least 1200 square metres and at least 1 street frontage of 24m (if the area of the site is less than 1800 square metres) at sub-cl 6.5(2) of LEP 2012.

16. 9 Duff Street to the west of the site is zoned E4 Environmental Living. The height of buildings development standard for the adjoining property is 9.5m.

17. Ku-ring-gai Local Centres Development Control Plan 2013 (DCP 2013) applies to the site. The objectives for land amalgamation at 3A.1 of DCP 2013 are:

To encourage lot size and shape that supports a practical and efficient layout to meet the intended use.

To ensure amalgamation patterns create usable allotments which relate to the site conditions and allow for development which is suited to the site, its context and strategic intent.

To achieve orderly and economic development.

To prevent sites from becoming isolated and unable to be developed in accordance with KLEP (Local Centres) 2012.

To encourage consolidation of sites to enable efficiency through shared facilities and services, such as car parking, recycling and waste collection.

To amalgamate corner lots into sites large enough to create corner buildings with a cohesive built form.

To provide workable building footprints that allow future development that meets the requirements of this plan.

18. Control 4 of 3A.1 states that lot amalgamation is to avoid creating a street frontage less than required by LEP 2012. Where a development proposal results in an isolated site, the application must demonstrate that the proposal achieves an appropriate urban form for the location and has an acceptable level of amenity, at control 6. The Note to control 6 includes the following text:

The application may need to include a setback greater than the minimum requirement in the relevant planning controls. Or the development potential of both sites may need to be reduced to enable reasonable development of the both sites while maintaining the amenity of both developments.

19. The Council submits that the applicant has, to Council’s satisfaction, demonstrated that they have made reasonable attempts to acquire 5 Duff Street for the purpose of amalgamating the two sites.

20. The preferred layouts for multi dwelling housing are shown at 6A.1 of DCP 2013, including Figure 6A.1.2 as follows:

Figure 6A.1-2.

Site layout with <25m frontage

21. The objectives of 6A.1 of DCP 2013 are as follows:

To ensure that site planning for multi-dwelling housing responds to site attributes, such as streetscape character, existing vegetation and topography.

To achieve a high standard of amenity for future residents.

To minimise impacts on the amenity of neighbouring sites.

To soften buildings and driveways by blending into a landscaped setting.

22. Building setbacks, at 6A.2 of DCP 2013, requires a minimum setback of 3m from any side boundary including basements, with the relevant objectives of ensuring buildings are set within a garden setting dominated by canopy trees. Eaves, open pergolas and blades, fins, columns may encroach into the setback area, at control 12.

23. Deep soil landscaping, at 6A.5 has as an objective to ensure that most of the deep soil landscaping is within common areas and adequate deep soil areas for tree and screen planting are to be provided to all side boundaries, at control 5. A maximum of one third of the principal private open space area may be counted as deep soil landscaping, at control 6. Deep soil landscaping is defined in DCP 2013 as:

the soft landscaped part of the site area:

i) that is not occupied by any structure, whether above or below the surface of the ground, except for minor structures such as:

-- paths to 1.2m wide;

-- stormwater pipes of 300mm or less in diameter;

-- lightweight fences;

-- bench seats;

-- lighting poles;

-- drainage pits with a surface area less than 1m2.

ii) that has a minimum width of 2m;

iii) that is not used for car parking;

iv) may be used for water sensitive urban design, provided it does not compromise the ability to achieve the screen and canopy planting required by this DCP.

24. Car parking spaces, circulation areas, roadways and ramps are to comply with AS2890.1, at control 4 of 6B.2.

25. Multi dwelling housing development must provide a minimum (internal dimension) 35sqm of private open space per dwelling at ground floor and must ensure a single space of minimum 25sqm with a minimum internal dimension of 4m and direct access from a living area of the dwelling, in order to provide usable areas for residents to enjoy outdoor living, at control 1 of 6C.2.

26. All buildings must be modulated and articulated with wall planes varying in depth by not less that 300mm and where external walls are longer than 12m they must be stepped by a minimum of 600mm, at control 2 of 6C.8.

27. Where a third storey is proposed the gross floor area of the top storey of a multi-dwelling house development must not exceed 60% of the gross floor area of the storey below and where the third storey is not incorporated into the roof form, it must be setback from the outer wall of the floor below on all sides, at controls 1 and 2 of 6C.9. The objectives for top storey design and roof forms are:

To minimise the visual bulk of buildings.

To provide interesting roof forms.

To contribute to the overall design and environmental performance of buildings.

28. All multi-dwelling developments are to have 2.7m floor to ceiling dimensions in habitable rooms and 2.25 in non-habitable rooms, at control 1 of 6C.10.

29. At least 70% of dwellings in medium density residential developments are to be ‘visitable’ (accessible), at 2.1 of Part 2 of DCP 2013.

Expert evidence

30. The applicant relied on expert evidence from Mr Russell Kingdom (arboriculture), Mr Michael Logan (traffic), Garry Chapman (planning).

31. The Council relied on the expert evidence of Mr Guy Paroissien (arboriculture), Mr Ross Guerrera (traffic), Mr Richard Kinninmont (planning) and Mr Michael Zanardo (architecture and urban design).

Non-compliance with the site requirements for multi-dwelling housing development standard

32. The site frontage is 19.81m (exhibit O), which is less than the 24m street frontage required by cl 6.5(2)(a) of LEP 2012 for a site area of less than 1800sqm. The applicant provided a written request (exhibit 5) seeking to justify the variation of the development standard, pursuant to sub-cl 4.6(3) of LEP 2012. The applicant’s justifications for the proposed multi-dwelling housing use of the site, notwithstanding the non-compliance of the proposal with the minimum street frontage dimension of 24m, can be summarised as follows:

• The site, with an area of 1309sqm, meets the minimum site area requirement of 1200sqm;

• The multi-dwelling housing development can be accommodated on the site which is consistent with the objective of the R3 zone for the provision of additional housing;

• The proposal meets the LEP 2012 development standards for height and FSR and DCP controls for setbacks, site coverage and deep soil landscape area, ensuring the proposal will be viewed within a landscaped setting;

• Tree 1 is retained;

• There are no amenity impacts on 9 Duff Street and an amalgamated and compliant site would result in a similar relationship between the site and 9 Duff Street;

• A degree of flexibility should be provided as the adjoining property could not be acquired.

33. Mr Pickles submits that it is a relevant consideration that the applicant had no choice in terms of ‘dancing partners’; that is, the only option for amalgamation with the site is 5 Duff Street as only 5 and 7 Duff Street are zoned R3 and Council accepts that the applicant has made all reasonable attempts to acquire 5 Duff Street. Those facts are sufficient to justify that the site cannot meet the minimum street frontage dimension as there is no other option for amalgamation and the only alternative is ‘sterilisation’ of the site’s development potential, which is inconsistent with its orderly and economic development.

33. Mr Pickles submits that the second objective in cl 6.5 is met, as the landscaping proposed is generous, the side setbacks are compliant and the proposal does not create any adverse impacts on the adjoining dwellings.

Consideration

Contravention of the minimum street frontage dimension of 24m for multi-dwelling housing

35. Development consent must not be granted for development that contravenes a development standard, at sub-cl 4.6(4) of LEP 2012, unless the consent authority is satisfied that the applicant’s written request has adequately addressed the matters required to be demonstrated by sub-cl 4.6(3) (that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and that there are sufficient environmental planning grounds to justify contravening the development standard) and that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.

36. The applicant’s written request justifies the contravention of the minimum street frontage dimension on the basis that there is no alternative (as the site cannot be amalgamated with 5 Duff Street); the site can accommodate a multi-dwelling housing development which complies with the relevant numerical controls in the planning regime; the proposal will maintain the local character by providing a development within a landscaped setting and the proposal will have an appropriately decorous relationship with 9 Duff Street and that relationship would be no different if the site was compliant with the street frontage requirement.

37. I am not satisfied that the proposal is consistent with objective (a) of sub-cl 6.5(1) in LEP 2012, ‘so as to provide for the orderly and economic development of residential land while maintaining the local character’ for the reasons set out below and as a consequence development consent cannot be granted.

Protection of biodiversity

38. The Council contends that the applicant has failed to demonstrate that the proposal will not have adverse impacts on Tree 1. Tree 1 is a Sydney Blue Gum and is located adjacent to the side boundary with 9 Duff Street, towards the rear of the site.

39. The arboriculture experts agree that the tree is of high landscape significance and that that the tree protection zone (TPZ) of Tree 1 is a circle around the tree trunk with a 15m radius (exhibit 10). They agree that a 10% encroachment by excavation and a further 10% encroachment above ground onto the TPZ of Tree 1 are acceptable. The experts agree that the encroachment of the built form of the proposal is within those limits in relation to Tree 1.

40. At the eleventh hour, the applicant tendered the final iteration of the plans (exhibit S), which truncated the rear courtyards of units 4, 5 and 6 to a depth of 9m beyond the (un-dimensioned) rear terrace of unit 4. The private open space courtyards of units 4, 5 and most of the private open space courtyard of unit 6 are located within the TPZ of Tree 1. The courtyard of unit 4 is, according to Mr Paroissien, 2m from the tree trunk of Tree 1.

41. Mr Paroissien is concerned that the courtyards to units 4, 5, and 6, located in the TPZ of Tree 1, are positioned over undulating, steep land, which is, in its current form, unusable for recreation or accessing the clotheslines shown positioned at the rear boundary of each courtyard. In his view, it is inevitable that future owners of these units will modify the levels of their narrow courtyards by terracing the levels and introducing hard surfaces to make them useful outdoor spaces. Mr Bird also expressed the view that it is very likely future residents will modify their private open space. Mr Paroissien notes that any future modification of the levels in the TPZ of Tree 1, including cut and fill or excavation, will have a significant detrimental impact on the health of Tree 1 and reduce its life expectancy. Mr Paroissien is also concerned that future occupants will seek to have Tree 1 significantly pruned as the large branches will drop fruit and branches directly into the courtyards of the three units below the tree. Mr Paroissien is of the view that the remaining area of the TPZ of Tree 1 would be better to be located within a communal area as it is less likely that branches and dropping fruit would be an amenity issue over a communal garden area.

42. I accept Mr Paroissien’s evidence and I share his concern that the form of the development, with narrow courtyards across a steeply falling site in close proximity to Tree 1, pays no heed to the particular constraints of this site. It is inevitable that the steep hill will be significantly modified when these small courtyards are created, even just to provide safe access to the clotheslines located at the rear of each courtyard. I accept Mr Paroissien’s evidence that the inevitable future modification of the private courtyards, which occupy a significant segment of the TPZ of Tree 1, will have a detrimental impact on the health of Tree 1 and reduce its life expectancy. For this reason, I am not satisfied that the proposal meets the objectives of cl 6.3 of LEP 2012 for the protection of biodiversity.

43. In unit 6, there is a level drop of 1.8m from the small rear terrace to the ground below, which is undesirable as it creates two very separate spaces and results in overlooking of the adjoining courtyard when occupants of unit 6 are standing or sitting on their terrace. The private open space for units 4, 5 and 6 do not comply with the objectives at 6C.2 of DCP 2013 to provide private usable areas for residents to enjoy outdoor living and are not integrated into the overall design.

Orderly and economic development of 5 Duff Street

44. The Council contends the proposal will impact on the orderly and economic development of the adjoining property at 5 Duff Street, because the proposal compromises the potential redevelopment of 5 Duff Street. 5 Duff Street similarly constrained by an area of biodiversity significance at the rear of the site.

45. The applicant provided a concept plan for the development of 5 Duff Street (exhibit 5). The concept plan shows a conceptual envelope for four townhouses with a FSR of 0.44:1. The applicant submits that the development of 5 Duff Street is constrained particularly by Tree 2, which is centrally located in the backyard of 5 Duff Street, resulting in a lower yield than the proposal despite a similar site area and street frontage.

46. Trees 2 and 3 are Sydney Blue Gums, both located in the backyard of 5 Duff Street. The experts agree on the TPZ for both trees, Tree 2 is 11m radius and T3 is 11.2m radius. Both TPZs extend across the shared boundary with the site, as T3 is to the rear of T2. According to Mr Bird, the footprint of the proposal occupies 5.2% of the TPZ of Tree 2, which, given the formula agreed upon by the arboriculture experts of 10% encroachment for excavation as being acceptable, this would leave less than half of the remaining area of the TPZ of Tree 2 able to be occupied by the future development of 5 Duff Street, and yet the majority of the TPZ of Tree 2 is accommodated on 5 Duff Street, with 5m of the radius extending onto the site. Ms Reid submits that the proposal ‘takes more than its half’ of the available encroachment for excavation which represents an inequitable distribution of the allowable encroachment, which impinges on the future development potential of 5 Duff Street for multi-dwelling housing. Mr Pickles submits that as the canopy of Tree 2 overhangs the shared boundary, it is 7 Duff Street that is burdened by Tree 2 and it is the tree that imposes the constraint.

47. I accept Ms Reid’s submission that the encroachment by the proposal onto the TPZ of Tree 2 represents an inequitable distribution of the available area of the TPZ of Tree 2 for excavation. Less than 20% of the TPZ of Tree 2 is located on the site, yet the proposal occupies more than half of the area of the TPZ available for excavation. It would be a fair distribution of the area available for excavation if the proposal occupied less than 2% of the TPZ of Tree 2, being the 10% of the proportion of the TPZ located on the site.

48. The proposal occupies the entire area of the TPZ of Tree 1 available for excavation, which is reasonable even though half of the TPZ of Tree 1 is located on the site and the other half on 9 Duff Street because 9 Duff Street is zoned E4 and therefore cannot achieve the same gross floor area of development as the site.

49. All the properties on the north-western side of Duff Street are constrained by the area of biodiversity significance identified on the biodiversity map, extracted below. The location of each individual tree trunk is not especially significant; it is the Blue Gum High Forest as an area that is protected. The area of biodiversity significance has been further distinguished by the arboriculture experts, who agreed on the TPZ for each Blue Gum (exhibit 10). Exhibit 10 demonstrates that both 5 and 7 Duff Street are similarly burdened by the TPZ of Blue Gums. The site has the advantage of being able to occupy the entirety of the area of the TPZ of Tree 1 available for excavation.

50. The proposal, by occupying more than half of the area of the TPZ of Tree 2 available for excavation, diminishes the potential yield of 5 Duff Street, as demonstrated by the applicant’s own concept plan for 5 Duff Street, which achieves a significantly reduced yield for 5 Duff Street when compared to the yield achieved by the proposal.

Basement parking

51. In response to the Council’s contention regarding the number of car parking spaces provided in the early iterations of the proposal, the applicant amended the proposal (exhibits Q and S) to provide 11 spaces and modified the layout of the tandem parking bays and lift of unit 1 to eliminate the conflict between the parking space and the lift shaft, so that the occupant of Unit 1 would be able to open their car doors when parked in the tandem car parking space.

52. The traffic experts agreed that the proposal does not comply with the Australian Standard, as required by control 4 of 6B.2 of DCP 2013. In Mr Guerrera’s opinion, a B99 car cannot get down the ramp and a B85 car would need to be carefully manoeuvred to negotiate the ramp without scraping, as the configuration of the ramp effectively requires a U-turn and the dimensions do not provide the required clearance. In his view, there are some models of B85 cars that would not be able to negotiate the ramp. Mr Logan accepts that the clearance distance is not provided but considers that a B99 car can negotiate the ramp.

Relationship of the proposal to 9 Duff Street

53. In Mr Zanardo’s opinion, the proposal’s relationship with 9 Duff Street is insensitive, as the three storey side elevation of the proposal facing 9 Duff Street is largely unarticulated and the height difference between the house at 9 Duff Street and the proposal is exacerbated by the topography. In his view, the third storey should be further setback from the façade of the lower levels, in order to diminish the considerable bulk of the proposal at the south-western corner, particularly as the basement is fully out of the ground on the southern side of the proposal.

54. I accept Mr Zanardo’s evidence regarding the poor relationship the proposal creates with 9 Duff Street. The proposal, on the southern side, is positioned with the minimum 3m setback from the shared boundary with 9 Duff Street and is a full three storeys above ground, with little relief provided by the design in terms of articulating the side elevation or setting back the upper level. This relationship of the three storey wall of the proposal facing 9 Duff Street is further exacerbated by the steep fall from the site down the hill to 9 Duff Street.

55. Mr Pickles submits that the southern elevation to Duff Street (exhibit S, dwg A300 issue D) demonstrates an appropriate relationship between the proposal and 9 Duff Street, as the proposal is one level higher than the dwelling at 9 Duff Street and 9 Duff Street has a maximum height of buildings development standard of 9.5m. I do not accept this submission as the western elevation (exhibit S, dwg A301 issue C) shows the substantial, predominately unrelieved three storey wall facing the dwelling at 9 Duff Street. It is the three dimensional form of the proposal on the southern side and the steep fall of the topography both down Duff Street and to the rear of the site that creates the unacceptable built form relationship of the proposal with 9 Duff Street, as the relationship between the two sites is not simply the two dimensional elevation to Duff Street.

Findings

56. I am not satisfied that compliance with the site requirements for multi-dwelling housing at cl 6.5 of LEP 2012 development standard is unreasonable or unnecessary in the circumstances, because the proposal is not consistent with objective (a) of sub-cl 6.5(1) in LEP 2012, ‘so as to provide for the orderly and economic development of residential land while maintaining the local character’, as the proposal diminishes the potential yield of 5 Duff Street and provides a poor interface with 9 Duff Street.

57. I am not satisfied that the proposal meets the objectives of cl 6.3 of LEP 2012 for the protection of biodiversity, as it is inevitable that the small courtyards of units 4, 5 and 6, positioned across steeply sloping land in close proximity to Tree 1 and occupying a significant segment of the TPZ of Tree 1, will be significantly modified to make them safe and usable, which will have a detrimental impact on the health of Tree 1 and reduce its life expectancy.

58. The proposal does not achieve an acceptable relationship between the site and 9 Duff Street. A sensitive and skilful design is required to successfully achieve an appropriately decorous transition between the R3 medium density zone (the site) and the E4 Environmental Living zone (9 Duff Street) for low-impact residential development in areas with special ecological, scientific or aesthetic values.

59. The architectural plans (exhibits A and Q) were not consistent with the Court’s Practice Note ‘Class 1 Development Appeals’ Schedule A Requirements for Plans, item 4, as the plans did not include dimensions. Some dimensions were added to the exhibit S plans. Mr Zanardo pointed out a number of not insignificant errors in the architectural plans (exhibits A and Q) in oral evidence, which, although they were attended to in later iterations of plans tendered, demonstrated that the spatial planning of the proposal was not fully resolved.

Orders

60. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No. 442/14 for demolition of existing structures and construction of a multi-dwelling housing development consisting of six townhouses over basement parking at 7 Duff Street, Turramurra, is refused.

3. The exhibits, other than exhibits 6 and S, are returned.

_____________________

Susan O’Neill

Commissioner of the Court

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Decision last updated: 28 June 2016