Boyd v Ku ring gai Council

[2012] NSWLEC 1111

Land and Environment Court

New South Wales

Medium Neutral Citation:

Boyd v Ku ring gai Council [2012] NSWLEC 1111

Hearing dates:

5 April 2012

Decision date:

20 April 2012

Jurisdiction:

Class 1

Before:

Tuor C

Decision:

1. The appeal is dismissed.

2. The development application for a detached dual occupancy development at 95 Merrivale Lane, Turramurra, is refused.

3. The exhibits, except Exhibit 1, may be returned.

Catchwords:

DEVELOPMENT APPLICATION - detached dual occupancy. Adequacy of riparian zone and visual impact

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning Policy 53 Metropolitan Residential Development
State Environmental Planning Policy (SEPP 53 Transitional Provisions) 2011
Ku ring gai Planning Scheme Ordinance

Cases Cited:

Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472

Category:

Principal judgment

Parties:

John Boyd (Applicant)

Ku ring gai Council (Respondent)

Representation:

Mr G Christmas (Applicant)

Mr A Hudson (Respondent)
Apex Law (Applicant)

Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

10866 of 2011

Judgment

1. This is an appeal under the s97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Ku ring gai Council (council) of a development application (0618/10) for a detached dual occupancy development at 95 Merrivale Lane, Turramurra (site).

1. The key issues in dispute between the parties are whether the riparian zone is adequate and whether the proposal will have an acceptable visual bulk when viewed from the adjoining property to the south.

Site and its locality

1. The site is located on the eastern side of Merrivale Lane to the north of Pentecost Avenue. It has a frontage to Merrivale Lane of 21.336m and a maximum depth of 53.645m with an area of 1119 sqm. The site contains an existing dwelling and a swimming pool. It slopes steeply to the rear with an overall fall of about 10m. The rear boundary adjoins land owned by Pymble Golf Course which includes a watercourse, known as the South Branch of Cowan Creek. Adjoining development to the south is a two storey detached house (93 Merrivale Lane), which has its living areas, and a terrace orientated towards the site. To the north, the site adjoins a detached dwelling (97 Merrivale Lane). Surrounding development is generally detached dwellings on large allotments.

Proposal

1. The proposed dual occupancy development involves the retention of the existing single storey house, with some modification (dwelling A), and the construction of a two storey dwelling at the rear (dwelling B). Access to dwelling B is via a driveway along the northern boundary of the site and garage parking for two cars is provided. Planting for a Riparian Zone is proposed at the rear of the site.

Planning framework

1. The site is zoned Residential 2(c) under Ku ring gai Planning Scheme Ordinance (KPSO). Dual Occupancy development is not permissible within this zone. The development gains its permissibility under State Environmental Planning Policy 53 Metropolitan Residential Development (SEPP 53) which applies to all land within a residential zone (cl 16) and permits two dwellings to be erected on one allotment of land (cl 17) with consent (cl 18). Clause 19 of SEPP 53 provides development standards for detached dual occupancy development, which include a minimum allotment size of 600sqm and a maximum floor space ratio of 0.5:1. The proposal complies with these standards. The proposal also meets the car parking requirement in cl 20. Clause 32 of SEPP 53 requires satisfaction that the proposed development demonstrates that adequate regard has been given to principles, which include visual bulk. The parties disagree whether this principle is satisfied.

1. SEPP 53 was repealed on 3 June 2011; however, State Environmental Planning Policy (SEPP 53 Transitional Provisions) 2011 was made on 15 July 2011. This instrument enacts transitional provisions which permit the continued application of SEPP 53 to certain dual occupancy developments (cl 7(a)). The parties agree that the transitional provisions apply to the application.

1. Ku ring gai Dual Occupancy Development Control Code (Code) is not a planning instrument or a development control plan. However, it is an adopted policy of Council and consistent with the decision of McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 it can be given weight under s 79C(1)(e) of the EPA Act. The proposal does not comply with the 3m side setback control (cl 4.9.1(f)), the 7m height limit (cl 4.9.5 point 1) and the building envelope control (4.9.5 point 6). Similarly, the Riparian Policy 2004 (Riparian Policy) is and adopted policy of Council and may be given weight under s 79C(1)(e). The parties did not submit that the Code or the Riparian Policy were not relevant considerations.

1. Ku ring gai Draft Local Environmental Plan No 218 (Draft LEP) has been exhibited and is a relevant consideration under s79C(1)(a)(ii). The parties did not submit that the Draft LEP was imminent and certain. Under the Draft LEP the rear of the site is identified as Catagory 2 - Core Riparian Land and as an area of biodiversity significance. The Ku ring gai Biodiversity and Riparian Lands Study 2011 (Study) provides baseline data, management overlays and recommendations that support the draft LEP.

Evidence

1. The Court visited the site and surrounding area as part of a conciliation conference under s34AA of the Land and Environment Court Act 1979 (Court Act). The parties did not reach agreement and requested that the matter not proceed under s34AA(3). The matter proceeded as a hearing under s34C. The parties agreed that the site visit and the matters raised in conciliation may be considered as evidence in the hearing.

1. The Court heard evidence form the owner of 93 Merrivale Lane both on site and in Court. The owner was principally concerned that the proposal would severely impact on the amenity of her property. She stated that her living areas and terrace are orientated towards the north east to maximise solar access and the bushland outlook. In her opinion, the bulk and scale of the proposal would have an unacceptable visual impact when viewed from these areas. In particular, the removal of existing trees and shrubs, the inadequate side setback and bush fire constraints mean that the proposal will not be able to be adequately screened to mitigate its impacts. She was also concerned about privacy impacts and overlooking of her property.

1. The Court heard expert evidence on bushfire issues from Mr W Tucker (applicant) and Mr T O'Toole (council); ecological evidence from Dr D Wotherspoon (applicant) and Ms S Findlay and Mr J Whyte (council); and planning evidence from Mr A Minto (applicant) and Mr G Stewart (council).

Bushfire

1. The bushfire experts agree that the rehabilitation of the watercourse would warrant the area being bush fire prone land. The mitigation measures, including an Asset Protection Zone (APZ) of 8m from the building footprint; the planting proposed in the landscaped plan for Riparian Zone A and B; and the Vegetation Management Plan (VMP) provide adequate bushfire protection. However, they agree that there should be no additional canopy trees planted within Riparian Zones A and B. The two proposed Brachychiton acerifolius (Flame Tree), shown as existing on the landscape plan, and all foliage cover in Riparian Zone B and the Golf Course land should be contained within that zone to ensure that there are no branches within 2m, and preferably 5m of the house. They also stated that there should be no mixing of the sub storey of the Golf course and Riparian Zone B into Riparian Zone A, but that this could be achieved through the implementation of the VMP.

Ecology

1. The ecology experts agree that the watercourse is best classified as Category 2 and that a Riparian Zone should be provided. However, they disagree on whether the proposed Riparian Zone is adequate.

1. Ms Findlay and Mr Whyte stated that the Riparian Zone identified for a Category 2 watercourse in the Riparian Policy is 20m from the top of the bank for a Core Riparian Zone and a further 10m for the Buffer Zone. They accept that a reduced Riparian Zone may be provided due to the particular circumstances of the site, including its degraded condition and the extent of disturbance, including the existing swimming pool. In principle, they accept a 10m Core Riparian Zone and a further 5m Buffer Zone, however, they do not consider that the proposed planting and the encroachment of the APZ achieves an adequate Riparian Zone.

1. Ms Findlay stated that there is 'a clear conflict between the landscaping to meet the riparian policy objectives and the requirements for bushfire protection'. In particular, the requirements for an 8m APZ from the house which intrudes into Riparian Zone B, shrub cover to be managed and maintained at 20%, no additional canopy trees within Riparian Zones A and B and that the foliage cover be maintained within Riparian Zone B, impact on the ability of the Riparian Zone to meet the policy objectives

1. Mr Whyte shares this view and considers that the Flame Tree species, proposed in Riparian Zone B, is not identified as a characteristic species in the Final Determination for the Blue Gum High Forest (BGHF) critically endangered ecological community. In his opinion, to achieve the objectives of the Riparian Policy, the selection of the appropriate canopy tree should be based on the vegetation structure of the adjoining land, which is Blue Gums and Angophoras. Further, he considers there are an inadequate number of canopy trees proposed. In his opinion, the lack of suitable canopy trees and the constraints of the APZ within Riparian Zone B will not achieve a fully structured Core Riparian Zone. He also raised concerns about the lack of canopy trees and the extent of grass planting within Riparian Zone A.

1. Dr Wotherspoon stated that the 'floristic and structural specifications for BGHF are found in Tozer (2003, 2010)' and includes the Flame Tree species as a 'positive diagnostic species'. The selection of a naturally rare species adds to local biodiversity and together with the other planting achieves a fully structured BGHF. He stated that there were other suitable canopy trees that could be selected instead of the Flame Tree and the choice should be based on trees that can achieve multiple outcomes such as fauna value as well as fire resistance.

1. In his opinion, two canopy trees together with other planting are adequate to achieve a Core Riparian Zone. Further, he considered that the density of planting resulting from the APZ reflected 'heterogenous distribution of cover ' that would occur naturally. In his opinion, an appropriate Riparian Zone is provided which would achieve the objectives in the Riparian Policy and the Draft LEP as well as meet the bushfire constraints.

Visual Impact

1. The key disagreement between the planners is whether the proximity of the proposal to the side boundary and its overall height will have an unacceptable impact on the adjoining property to the south, particularly given that the bushfire constraints limit opportunities for planting. The experts agree that if the roof pitch were reduced, the proposal could comply with the overall height control.

1. Mr Minto considered the reduced side setback was acceptable as the ground floor level was below the level of the adjoining property. In his opinion, the visual impact of the proposal when viewed from 93 Merrivale Lane was acceptable principally because SEPP 53 anticipates the placement of a second dwelling in the rear of a property. While the upper floor and roof of the proposal will be able to be seen, the outlook from 93 Merrivale Lane to the canopy trees beyond the site will be maintained by the separation between the dual occupancy dwellings and over the proposed dwelling.

1. Mr Stewart considered that the non-compliances with the Code would contribute to an excessive building bulk and scale when viewed from the adjoining property, which due to the bushfire constraints, would not be adequately screened. In his opinion, this would result in an excessive visual impact.

Findings

1. The experts agree that a reduced Riparian Zone may be provided but that this should comprise a 10m Core Riparian Zone and an additional 5m Buffer Zone. They agree that the Core Riparian Zone should be fully structured BGHF, but disagree whether this is achieved.

1. The proposed Riparian Zone shown in the landscape plan consists of an area that extends 10m from the top of the bank of the watercourse, which includes the golf course land. The golf course land is being rehabilitated in accordance with the Cowan Creek Riparian Restoration Vegetation Management Plan. Part of the land within the 10m Riparian Zone on the site comprises a strip of planting which seeks to represent fully structured BGHF (Riparian Zone B). The remainder of the 10m Riparian Zone forms part of the 8m wide APZ and is within the planting regime identified for Riparian Zone A, which extends into the 5m Buffer Zone. A significant part of the 5m Buffer Zone is lawn.

1. Consequently, the majority of the Riparian Zone on the site is within the APZ and is planted either with lawn or BGHF shrub planting (Riparian Zone A) that will need to be managed to achieve the bushfire requirements. The proposal does not demonstrate that it will provide a Core Riparian Zone with a structure and density that would occur naturally. I do not accept Dr Wotherspoon's evidence that two canopy trees and a managed understorey are adequate for a Core Riparian Zone, particularly given that the extent of the zone has been significantly reduced. The Riparian Policy clearly envisages that an APZ will occur outside the Core Riparian Zone and there is an inherent conflict in trying to achieve a fully structured BGHF with canopy trees and understorey planting and maintain appropriate bushfire protection.

1. I accept the evidence of Ms Findlay and Mr Whyte that the proposed Riparian Zone does not meet the aim of the Riparian Policy for the 'rehabilitation and restoration of degraded, fragmented and highly modified riparian corridors that provide some of the functions of an intact system.' Nor does it meet a number of the policy objectives or requirements to:

• provide a core riparian zone of a density that would occur naturally;
• provide suitable habitat for terrestrial fauna;
• restore/rehabilitate the riparian zone with local provenance native vegetation;
• provide a suitable interface between the riparian area and urban development to minimise edge effects; and
• provide a bushfire APZ outside the core riparian zone.

1. The parties agree that a fully structured Riparian Zone, albeit of reduced width, should be provided. This has not been achieved and therefore the application must fail.

1. The setback of the house and the bushfire constraints also limit the extent of planting that can be provided to screen it from the adjoining property. It may not be reasonable to restrict a building on the site to preserve the outlook from 93 Merrivale Lane, however, the limited planting (four Dwarf Lilly Pillis, which reach a height of 3m) will do little to mitigate the visual impact of the proposal or to soften its appearance from the adjoining house. This impact will be exacerbated as the living areas and terrace are orientated over the site towards the north east and will look directly at the house.

1. For these reasons the application does not achieve the objectives in SEPP 53 to be of good design or that the proposal demonstrates that adequate regard has been given to the principle in cl 32(h) in relation to visual bulk.

Order

1.The appeal is dismissed.

2.The development application for a detached dual occupancy development at 95 Merrivale Lane, Turramurra, is refused.

3.The exhibits, except Exhibit 1, may be returned

Annelise Tuor

Commissioner of the Court

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Decision last updated: 10 May 2012