Blake v Ku-ring-gai Council

[2015] NSWLEC 1398

Land and Environment Court

New South Wales

Medium Neutral Citation:	Blake v Ku-ring-gai Council [2015] NSWLEC 1398
Hearing dates:	16,17 July 2015
Date of orders:	07 August 2015
Decision date:	07 August 2015
Jurisdiction:	Class 1
Before:	Brown ASC and Laing AC
Decision:	Directions for amended plans
Catchwords:	DEVELOPMENT APPLICATION: demolition of existing dwelling houses and the construction of 15 x 3 bedroom townhouses with basement parking – whether SEPP 65 applies - streetscape impacts - pedestrian entry - building separation - natural surveillance - solar access - pruning of the existing Himalayan Cedar – absence of detailed site analysis and design verification statement
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Ku-ring-gai Local Environmental Plan (Local Town Centres) 2012 State Environmental Planning Policy No. 65
Texts Cited:	AS 4373-2007 Pruning of amenity trees.
Category:	Principal judgment
Parties:	Peter Blake (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel: Mr A Pickles, barrister (Applicant) Mr R O’Gorman-Hughes (Respondent)   Solicitors: Apex Law (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	11046 of 2014
Publication restriction:	No

Judgment

1. COMMISSIONERS: This is an appeal against the refusal by Ku-ring-gai Council of Development Application No. 370/14 for the demolition of existing dwelling houses and ancillary structures and the construction of 15 x 3 bedroom townhouses, basement car parking for up to 32 vehicles and landscaping at 5 and 5a Cherry Street Warrawee (the site).

The council maintains that the application should be refused because:

• the proposed development results in adverse urban design and streetscape impacts and poor amenity for residents, particularly pedestrian entry, building separation, natural surveillance and solar access,

• the proposed development will have an adverse impact on the streetscape because of required pruning to the existing Cedrus deodar (Himalayan Cedar),

• the dwellings are not accessible and do not comply with the Building Code of Australia (BCA),

• the design not did not have regard to a detailed site analysis, and

• no design verification statement has been submitted.

2. Following further details being provided, the council did not press the issues relating to pedestrian entry, natural surveillance, heritage and accessibility.

3. There was also disagreement over whether State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) applies to the proposed development. If SEPP 65 applies then cl 30 requires consideration to be given to the design quality principles in Part 2 (cl 30(2)(b)), the publication Residential Flat Design Code (RFDC) (cl 30(2)(c)) and a design verification statement.

4. A number of residents provided evidence on the site inspection and a number of residential properties were inspected and an assessment made of any potential impacts. Their concerns generally reflected those contentions raised by the council together with the additional concerns of increased traffic, additional street parking and loss of views.

The site

5. The site is rectangular in shape with a frontage of 36.575m and a depth of 70.32m and a total area of 2,573m2. It comprises two allotments, Lot 1 and Lot 2 of DP 565138. Lot 1 is known as 5 Cherry Street and has an area of 1157m2 with a street frontage to Cherry Street. Lot 2 is known as 5a Cherry Street and is a battleaxe allotment with an area of 1416m2.

6. Existing on Lot 1 is a single storey dwelling with a swimming pool to the north-east of the dwelling, within its front setback. Along the front boundary is a high lapped and capped fence. Existing on Lot 2 is a single storey dwelling with a detached garage to the south­east. There is a swimming pool to the south of the dwelling, within its side setback.

7. The existing dwelling on Lot 1 is set within an established garden with a generous front setback. A large Himalayan Cedar is located in the front setback. There are smaller trees within the access handle to Lot 2 and along the common boundary between the allotments.

8. The site is gently sloping, with a fall of approximately 3.3m from its south-eastern corner to its north-western corner.

9. The site forms part of a transitional group of properties from the higher density zoned lands to the south, to the lower density lands to the north (across the railway line) and to the north-west.

Relevant planning controls

10. The site is within Zone R3 Medium Density Residential under Ku-ring-gai Local Environmental Plan (Local Town Centres) 2012 (LEP 2012). LEP 2012 came into effect on 8 February 2013. The proposed development is a permissible use with consent in this zone.

11. Clause 2.3(2) states:

(2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.

12. The R3 zone objectives 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 enable other land uses that provide facilities or services to meet the day to day needs of residents.

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

13. Clause 4.3 provides requirements for Height of buildings and cl 4.4 provides requirements for Floor space ratio (FSR). There was no dispute that the proposed development satisfied these requirements.

14. Ku-ring-gai Local Town Centres Development Control Plan 2013 (DCP 2013) applies.

Does SEPP 65 apply?

The submissions

15. The council argues that SEPP 65 defines a residential flat building as a building that comprises three or more storeys (not including levels below ground provided for car parking or storage that protrude less than 1.2m above ground level) and that comprise four or more dwellings. The definition of a residential flat building under SEPP 65 excludes a Class 1a building or Class 1b building under the BCA.

16. The note under the definition of residential flat building in SEPP 65 should not be read such that townhouses and villas are excluded from being considered in SEPP 65, but as an explanation as to what a typical Class 1 and 1b building could be described as for person not familiar with classifications in the BCA.

17. The proposed development comprises fifteen dwellings and has a height of three or more storeys. The second floor to Buildings A and C do not comprise an attic. An attic is a room wholly contained within the roof space. The proposed second floors are not wholly contained within the roof space and have feature walls to their western elevations. The proposed second storeys also feature a terrace along the eastern elevation, which is atypical of an attic.

18. For these reasons, the proposed development constitutes a residential flat building as defined by SEPP 65. The application has not been accompanied by a design verification statement and has therefore not been made in accordance with clause 50(1A) of the Regulations.

19. The applicant argues that the development proposal meets the definition of multi-dwelling housing as defined in the dictionary of LEP 2012 being:

Multi dwelling housing means 3 or more dwellings (whether attached or detached) on one lot of land, each with access at ground level, but does not include a residential flat building.

20. There is a clear distinction to a residential flat building noting each dwelling must have access at ground floor level. It is noted that SEPP 65 contains a definition of residential flat building applying to 3 or more storeys and 4 or more dwellings. The definition in SEPP 65 states:

but does not include a Class 1a building or a Class 1b building under the Building Code of Australia.

Note.

Class 1a and Class 1b buildings are commonly referred to as town houses or villas where the dwelling units are side by side, rather than on top of each other.

21. The definition of a Class 1a building is a single dwelling being a detached house or one or more attached dwelling which is not located above or below another dwelling another Class of building other than a private garage. The development proposal has been designed with garages from each dwelling in a basement car park.

22. In the case the development falls outside of the definition of a Class 1 building, the proposal has been clearly designed as town house - multi-dwelling housing and is not a residential flat building as defined in LEP 2012. The development should be assessed in accordance with the relevant objectives and development standards in the LEP 2012 and Part 6A of the DCP 2013.

Findings

23. Clause 4(1)(a) of SEPP 65 states:

4 Application of Policy

(1) This Policy applies to development being:

(a) the erection of a new residential flat building, and

24. “Residential flat building” is defined in cl 3 as:

residential flat building means a building that comprises or includes:

(a) 3 or more storeys (not including levels below ground level provided for car parking or storage, or both, that protrude less than 1.2 metres above ground level), and

(b) 4 or more self-contained dwellings (whether or not the building includes uses for other purposes, such as shops),

but does not include a Class 1a building or a Class 1b building under the Building Code of Australia.

Note.

Class 1a and Class 1b buildings are commonly referred to as town houses or villas where the dwelling units are side by side, rather than on top of each other.

25. The BCA (at pt A3.2) provides the following classifications:

Class 1: one or more buildings which in association constitute-

(a) Class 1a - a single dwelling being-

(i) a detached house; or

(ii) one of a group of two or more attached dwellings, each being a building, separated by a fire-resisting wall, including a row house, terrace house, town house or villa unit; or

(b) Class 1b -

(i) a boarding house, guest house, hostel or the like-

(A) with a total area of all floors not exceeding 300 m2 measured over the enclosing walls of the Class lb; and

(B) in which not more than 12 persons would ordinarily be resident; or

(ii) 4 or more single dwellings located on one allotment and used for short-term holiday accommodation,

which are not located above or below another dwelling or another Class of building other than a private garage.

26. Private garage is defined in the BCA as:

Private garage

means—

(a) any garage associated with a Class 1 building; or

(b) any single storey of a building of another Class containing not more than 3 vehicles spaces, if there is only one such storey in the building; or

(c ) any separate single storey garage associated with another building where such garage contains not more than 3 vehicles spaces

27. We are satisfied that the proposed development is appropriately classified as a Class 1a building under the BCA. It is “one of a group of two or more attached dwellings, each being a building, separated by a fire-resisting wall” that is best described as a “townhouse”. The BCA does not define a “row house, terrace house, town house or villa unit” however if the normal meaning of a townhouse; being dwellings side by side rather than on top of each other, levels of accommodation above each with internal access and with an individual entrance is adopted, it is clear that the proposed development falls comfortably within the meaning of townhouse. In our view, it is not appropriate or necessary to look for a definition of townhouse elsewhere if it cannot be found in the BCA.

28. We are satisfied that each town house is “associated” with their respective private garage by way of direct internal access to the garage directly below the town house, it satisfies part (a) of the definition of “Private garage” in the BCA. While, in a number of very small instances, other uses, such as the garbage room are also below a townhouse part (a) of the definition of “Private garage” in the BCA is still satisfied. The definition of “Private garage” does not require that it be located exclusively below the townhouse it is associated with.

29. For the development to be classified as a Class 1b building, it needs to be either “a boarding house, guest house, hostel or the like” or “used for short-term holiday accommodation”. Clearly, this is not the case.

30. In the absence of any expert evidence and based on the evidence before us, the proposed building is a Class 1a building and is not a “residential flat building” pursuant to cl 4 of SEPP 65 and as such, SEPP 65 does not apply.

31. If we are incorrect in concluding that SEPP 65 does not apply, we propose to address the contentions where SEPP 65 was raised by the council.

Streetscape

32. The impact on the streetscape of Cherry Street was a significant issue in the proceedings. The issue focussed on the existing Himalayan Cedar that was required to be pruned on its western side to avoid conflict with the proposed building.

33. Mr Geoff Bird provided evidence for the council and Mr Russell Kingdom provided evidence for the applicant. They agree that the tree is in excellent condition, good health and is the dominant tree on site. They also agree that the proposed setback from the tree for Dwellings 2 and 3 has not considered the need for scaffolding to construct the development. An additional 1m setback from Dwellings 2 and 3 is required. This will reduce the setback for canopy reduction pruning from the tree on the western side to approximately 5.4m. The upper one third of the canopy of the tree does not require pruning and is not impacted. The experts agree that the necessary pruning will not affect the health of the tree.

34. The experts also agree that the canopy to the west of the 5.4m setback requires removal to avoid conflict with the development proposal. While agreeing on the extent of necessary pruning, the experts however disagreed on the how this pruning should be undertaken. Mr Kingdom stated that the parent (scaffold) branch to be removed has many epicormic shoots growing between the pruning site and the trunk of the tree. There are also 2 branches lower on the scaffold branch that comply with pruning targets as specified in AS 4373-2007 Pruning of amenity trees. These branches are larger than 30% of the scaffold branch. This branch should not be trimmed to the scaffold branch collar as recommended by Mr Bird.

35. The removal of the branch beyond 5.4m will allow the existing growth shoots to form into branches as there will be increased light. This lowest scaffold branch will develop good growth which will be the same as the rest of the tree.

36. Mr Bird states that the point of pruning as recommended by Mr Kingdom is not in accordance with AS4373-2007 Pruning of amenity trees. Pruning as recommended by Mr Kingdom is not to an internal lateral branch or stem and will result in a branch stub. This will impact the natural habit and form of the tree. If the scaffolding branch is to be removed to this setback it should be removed to the branch collar at the trunk, due to lack of suitable lateral branches. Mr Bird is of the opinion that the development setback should be increased to reduce required pruning of the tree to enable the retention of lower scaffold limbs.

37. The pruning of this tree at 5.4m from the trunk will allow the tree to have an altered, but natural looking, canopy at the pruning point. These works will benefit the tree as it will balance the crown and not reduce its useful life expectancy.

38. On the question of the extent of pruning, we are satisfied that Mr Kingdom’s approach is more desirable as it retains the limbs at a distance of 5.4m from the trunk rather than removing the limbs at the trunk. Even if Mr Kingdom is incorrect and the shoots do not grow, the limb can be pruned to the trunk as suggested by Mr Bird, at a later date

39. Further evidence on the impact of the development on the streetscape was provided by town planners Ms Brodee Gregory for the council and Mr Garry Chapman for the applicant. The council’s urban designer Mr Peter Smith also commented on streetscape. The council experts took the view that the source of the streetscape issue was the absence of a properly prepared site analysis. Without such a document, the benefits of the retention of the Himalayan Cedar could not be fully understood.

40. In response to such an approach, we do not accept that the simple identification of the tree, and its qualities, does not necessarily ensures its retention and that any development would avoid it. The identification of the tree in this case, has resulted in selective pruning that has not threatened the health of the tree or its longevity. A similar conclusion could have reasonably been reached without a detailed site analysis.

41. In terms of the impact of the pruning has on the streetscape, and with the benefit of observing the streetscape from a number of locations, we are satisfied that the impact is minor, or even negligible. The tree will still retain a significant place in the streetscape of Cherry Street. The form of the tree will be largely unaltered and will sit comfortably in front of the proposed development. Whatever description is used to identify the pruning, the impact on the streetscape by the pruning of the Himalayan Cedar is not a matter that would warrant the refusal of the application.

42. We are satisfied that the proposed development displays good design in relation to streetscape and satisfactorily addresses the design quality of principles of Principle 1: Context, Principle 6: Landscape and Principle 10: Aesthetics.

Solar access

43. Clause 6C.3 addresses solar access and relevantly states:

Objectives

1. To ensure a high level of internal amenity for occupants.

2. To provide direct access to daylight in all habitable rooms.

3. To minimise overshadowing of living areas and private and communal open space areas within neighbouring developments.

4. To minimise the impact of development on existing solar collection devices.

5. To provide a comfortable internal environment during summer

Controls

5. All developments must allow the retention of at least three hours of sunlight between 9am and 3pm on 21st June to the living areas and the principal portion of the private and communal open space of:

● existing residential flat buildings and multi-dwelling housing on adjoining lots; and

● any residential development in adjoining lower density zones.

Where existing overshadowing by buildings is greater than this, sunlight is not to be reduced by more than 20%.

44. Solar access was addressed for the council by Mr Smith and for the applicant by Mr Steve King. They agreed that the required amount of solar access (3 hours) does not need to be contiguous in order to provide reasonable amenity. The experts also agreed that the provision of second floor sunrooms to Dwellings 2 and 3 improves the amenity of the dwellings. The experts also agreed that the quality of sunlight to the sunrooms would be improved if the dormers were made larger and the wardrobes were relocated to the eastern wall of the master bedroom. This would also improve the usability of the modestly sized bedrooms and sunrooms, and prevent the future removal of the dividing wall.

45. The experts differed on the interpretation of cl 6C.3. Mr Smith produced a number of diagrams to show the amount of sunlight striking the floor through the different angles of incidence as the sun progressed on 21st June. Mr Smith also adopted the need to have at least a patch of sunlight that reached to the floor to address the words “to the living areas” in cl 6C.3. In his assessment, if the angle of incidence greater than 24 deg then solar access was “unquestionable”. An angle of incidence between 16 and 24 deg was “questionable” and anything less than 16 deg was “unacceptable”. On this basis, the proposed development did not satisfy the 3 hour requirement in cl 6C.3 as only 1 hour 50 minutes of “unquestionable” solar access was provided.

44. Mr King disagreed with the conclusions of Mr Smith. He stated that the orientation of the site and the east facing and west facing elevations made compliance difficult. He did not accept the need for “at least a patch of sunlight” to be the appropriate benchmark. It is not identified as a requirement in DCP 2013, and in his opinion, it is not necessary for amenity purposes when sunlight on the window achieves a beneficial effect for occupants of a dwelling in mid winter. Using Mr Smith’s method for calculating solar access but allowing all solar access that has an angle of incidence greater than 16 deg, (rather than 24 deg) and some re-orientating of some units, there was no dispute that the development satisfies the 3 hour requirement.

45. We accept the conclusions of Mr King on this matter. The proposed development provides an acceptable level of solar access given the design and orientation of the lot. We are satisfied that objectives 1 and 2 in cl 6C.3 are satisfactorily addressed.

46. While Mr Smith advocated a different building layout to that proposed in the application as he suggested that it provided increased solar access. Mr King questioned whether Mr Smith’s layout reduced solar access to the private courtyards of the town houses. We have given no weight to the alternate layout as it was firstly, not possible to accurately assess this layout and secondly, and more importantly, the question the Court is required to answer is not whether there is a more suitable design but whether the design before the Court is acceptable or not.

47. While the council experts raised concern over the differences with the “preferred layouts” in cl 6A.1 we see no valid planning reason why a development should be restricted to the three identified layouts given that each site would have its own particular characteristics that would require a different approach. We do not accept the development has a “gun barrel” appearance. We do not accept that there is any conflict with cl 6C.7 of DCP 2013.

48. We are satisfied that the proposed development displays good design in relation to solar access and satisfactorily addresses the design quality of principle of Principle 7: Amenity. We are also satisfied that the proposed development complies with the objectives for Daylight Access in the RFDC (p 84).

49. We are also satisfied that the proposed development displays good design in relation to site layout and satisfactorily addresses Principle 3: Built form.

Building separation

52. The building separation of 6m satisfies the requirement in cl 6A.3 of DCP 2013 and cannot reasonably be a reason to refuse the application.

53. Even though the proposed development does not satisfy the 12m separation distance in the RFDC (p28) we are also satisfied that adequate separation is provided given compliance with the councils DCP 2013 requirements, the layout of the townhouses, the adequate solar access and the likely limited use of the building separation areas.

Privacy/overlooking

54. Ms Gregory and Mr Chapman agree that privacy impacts at first floor level of Buildings B and C can be addressed through design amendments

Traffic/parking

55. Increased traffic and additional on-street parking were raised by the residents who provided evidence on-site. It was not a matter raised by the council.

56. The applicant provided a Traffic and Parking Assessment Report by Terraffic Pty Ltd that addressed the on-site parking and provision and the potential impact on local traffic. The report concluded that the proposed development provides in excess of the on-site parking requirements in Sch 2R.2 of DCP 2013 (28 spaces rather than 23 spaces) and that the development will have “no noticeable or unacceptable effect on the road network servicing the site in terms of road network capacity or traffic-related environmental effect”.

57. In the absence of any expert evidence to contradict these conclusions, we accept that traffic and parking are not reasons to refuse the application.

Loss of views

58. We inspected units within an existing development to the south where owners raised concerns over loss of views caused by the proposed development. Having made an assessment of the view loss by estimating the location of the proposed development we are satisfied that view loss would not be a reason to refuse the application. We have come to this conclusion based on the zoning of the land that anticipates higher density residential development on the site, compliance with the height control and the view corridor provided by the north-south orientation of the proposed buildings. We note that view loss was not a contention raised by the council.

Site analysis

59. A site analysis is required by pt 2 of DCP 2013. While we accept that a site analysis is best used for the identifying opportunities and constraints in design, it does not necessarily follow that the absence of a site analysis automatically results in a poor design. We understand that a site analysis has subsequently been prepared and even though it may not have performed its proper role, it is not a matter that would warrant the refusal of the application.

Design verification statement

60. Section 50 (1A) of the Environmental Planning and Assessment Regulation 2000 provides:

50 How must a development application be made?

(1) A development application:

(a) must contain the information, and be accompanied by the documents, specified in Part 1 of Schedule 1, and

(1A) A development application that relates to residential flat development that is made on or after 1 December 2003 must be accompanied by a statement by a qualified designer, being a statement in which the qualified designer verifies:

(a) that he or she designed ,or directed the design, of the residential flat development, and

(b) that the design quality principles set out in Part of State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development are achieved for the residential flat development

61. The absence of a design verification statement is not fatal to the application however it should be provided prior to any final orders being made by the Court.

Amended plans and conditions

62. There a number of matters that were identified during the hearing that should be reflected in amended plans and revised conditions. These are:

1. the pedestrian entry where the steps are required to be replaced with a ramp,

2. an additional window to increase passive surveillance,

3. the requirements for the pruning of the Himalayan Cedar as set out in the judgment,

4. details of lighting,

5. the re-orientation of some townhouses to increase the levels of solar access,

6. amendments to address privacy impacts at first floor level of Buildings B and C, and

7. the provision of a design verification statement in accordance with Section 50 of the Environmental Planning and Assessment Regulation 2000.

63. On the filing of agreed amended plans and conditions that reflect the findings in the judgment and the agreed changes during the hearing, and are satisfactory, orders will be made in chambers that state:

1. The appeal is upheld.

2. Development Application No. 370/14 for the demolition of existing dwelling houses and ancillary structures and the construction of 15 x 3 bedroom townhouses, basement car parking at 5 and 5a Cherry Street Warrawee is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of exhibits 1 and A.

_____________

G T Brown

Acting Senior Commissioner

_________________

Norman Laing

Acting Commissioner of the Court

11046 of 2014 Brown (C) (172 KB, pdf)

Decision last updated: 29 September 2015