Chen v Ku-ring-gai Municipal Council

[2019] NSWLEC 1095

Land and Environment Court

New South Wales

Medium Neutral Citation:	Chen v Ku-ring-gai Municipal Council [2019] NSWLEC 1095
Hearing dates:	5 March 2019
Date of orders:	14 March 2019
Decision date:	14 March 2019
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	(1) The appeal is dismissed. (2) Development Application No. 0092/18 for the subdivision of the property into two lots and minor alterations and additions to the existing dwelling is refused. (3) The exhibits, other than Exhibits 1 and A, are returned.
Catchwords:	DEVELOPMENT APPLICATION: subdivision into two Torrens Title lots; minor alterations and addition to the existing dwelling identified as contributory to the heritage significance of the heritage conservation area; impact on the heritage significance of the heritage conservation area; impact on the heritage significance of adjoining heritage items.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Ku-ring-gai Local Environmental Plan 2015 Land and Environment Court Act 1979
Cases Cited:	Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Wehbe v Pittwater Council (2007) 156 LGERA 446
Texts Cited:	Ku-ring-gai Development Control Plan
Category:	Principal judgment
Parties:	Xiao Chen (Applicant) Ku-ring-gai Municipal Council (Respondent)
Representation:	Counsel: R O’Gorman-Hughes (Respondent)   Solicitors: G McKee, McKees Legal Solutions (Applicant) Shaw Reynolds Lawyers (Respondent)
File Number(s):	2018/203371
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 0092/18 for the subdivision of the existing allotment into two Torrens Title lots and minor works to the existing dwelling (the proposal) at 12 Church Street, Pymble (the site) by Ku-ring-gai Municipal Council (the Council).

2. The appeal was subject to conciliation on 5 March 2019, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated and a hearing held forthwith, pursuant to s 34AA(2)(b)(i) of the LEC Act.

3. Leave was granted by the Court on 1 March 2019 for the applicant to amend the application by relying on an amended proposal (Ex A).

4. The parties consented to the admission of evidence given during the conciliation conference in the hearing, pursuant to s 34(12) LEC Act.

Issues

5. The Council’s contentions can be summarised as:

• The proposal will adversely affect the heritage values of the Pymble Heights Conservation Area.

• The location of the existing dwelling in relation to the southern boundary of Lot A is inconsistent with the setback controls and will result in adverse impacts on the internal landscape amenity of the site and streetscape.

• The proposed building zone on Lot A will have adverse impacts on the landscape amenity of the streetscape.

• The proposal fails to meet the minimum 18m allotment width requirement and the written request seeking to justify the contravention of the development standard is not well founded and will not achieve a better outcome for and from the development. The proposal is not consistent with the development controls, contrary to the objectives for the development standard.

6. The Statement of Facts and Contentions (Ex 1) particularises Contention 5 (regarding the minimum 18m allotment width requirement), at (c), as, “The variation to the standard is not well founded and will not achieve a better outcome for and from the development, as an objective of cl 4.6 for the reasons stated in these contentions”. Clause 4.6 of Ku-ring-gai Local Environmental Plan 2015 (LEP 2015) does not directly or indirectly establish this test (see Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 [88] (“Initial Action”)).

The site and its context

7. The site is on the high side of Church Street and has an area of 2,289m² with a frontage of 56.06m to Church Street. The site is an unusual quadrilateral shape with no parallel boundaries. The site falls approximately 8m from the northern corner at the Church Street frontage to the rear, southern corner. The site contains a dwelling house approximately centred on the front boundary and positioned on the high side of the allotment. The dwelling does not align in orientation with any of the site’s boundaries.

8. The site contains a mature Camphor Laurel (Tree 27) with a tree protection zone (TPZ) radius of 11.4m and a Liquidambar (Tree 34) with a TPZ radius of 8.4m, both close to the south-eastern side boundary shared with 10 Church Street (Ex F).

9. 10 Church Street is a Federation style dwelling which is positioned on its large allotment immediately adjacent to the shared boundary with 12 Church Street. The dwelling orientates to the corner of Church Street and Wellesley Street, and towards Wellesley Street. It has contemporary extensions at the rear, adjacent to the shared boundary.

The proposal

10. The proposal is to subdivide the site into two lots, Lot A and Lot B. Lot A has an area of 1,282.7m² with a frontage of 42.89m and contains the existing dwelling and Lot B has an area of 1,006.3m² with a frontage of 13.17m.

11. The shared boundary between the lots is positioned adjacent and parallel to the south-eastern side façade of the existing dwelling with a setback from the side façade of the dwelling between 0.85m and 1.7m.

12. Lot B has a floor space ratio (FSR) development standard of 0.3:1 (gross floor area of 301.89m²) and a height of buildings development standard of 9.5m. The proposal includes a rectangular “Proposed Building Zone” footprint on Lot B with an area of 179.17m² and an indicative driveway location shown. The Proposed Building Zone is setback from the front boundary measured from near the eastern corner of the site by 14m, which aligns approximately with the rear of the chimney stack on the side elevation of the existing dwelling on Lot A. The Proposed Building Zone has a side setback from the shared boundary with Lot A of 2m. The Proposed Building Zone has a minimum rear setback of 12m. The future development of Lot B will require development consent.

13. The proposal includes minor alterations and additions to the existing dwelling to remove an addition enclosing part of the verandah on the eastern corner and new infill verandah fabric to match the existing joinery detailing. The proposal includes alterations to the existing carport, replacement of the front fence and a reduction in the area of paving in the front setback. These proposed alterations and additions are not controversial.

Planning framework

14. The site is zoned R2 Low Density Residential pursuant to LEP 2015. The objectives of the R2 zone, to which regard must be had, are:

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

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To provide for housing that is compatible with the existing environmental and built character of Ku-ring-gai

15. Development consent is required for the subdivision of land, at cl 2.6 and for land within a heritage conservation area, at cl 5.10(2)(f) of LEP 2015.

16. The minimum lot size for the site is 930m² (Lot Size Map - Sheet LSZ_007 of LEP 2015). Clause 4.1 Minimum subdivision lot size of LEP 2015 is in the following terms:

(1) The objectives of this clause are as follows:

(a) to ensure that lot sizes and dimensions are able to accommodate development consistent with relevant development controls and minimise risk to life and property from environmental hazards, including bush fires,

(b) to ensure that lot sizes and dimensions allow development to be sited to protect natural or cultural features including heritage items, remnant vegetation, habitat and waterways, and provide for generous landscaping to support the amenity of adjoining properties and the desired character of the area,

(c) to ensure that subdivision of low density residential sites reflects and reinforces the predominant subdivision pattern of the area.

...

(3A) Development consent must not be granted for the subdivision of land in any of the following zones unless the subdivision would result in each lot, other than a battle-axe lot, having a width of a least 18 metres along a line that is 12 metres from the street frontage of the lot:

(a) Zone R2 Low Density Residential ...

17. The width of Lot B along a line 12m from the street frontage of the lot is 17.22m (Ex A, Civil Engineering Plans D2 Rev G). The applicant provided a written request seeking to justify the contravention of this development standard, pursuant to the terms of cl 4.6 of LEP 2015 (Ex B).

18. The adjoining property, 10 Church Street, to the south-east of the site is identified as a heritage item (Sch 5 of LEP 2015 Item 530 “Dwelling house”) and the adjoining property, 31 King Edward Street, to the west of the site, is identified as a heritage item (Sch 5 of LEP 2015 Item 554 “Batonga, dwelling house”). The site is within the Pymble Heights Conservation Area C8A (Pymble Heights CA): see Sch 5, Pt 2 of LEP 2015. Clause 5.10(4) of LEP 2015 requires the consent authority to consider the effect of the proposal on the heritage significance of the Pymble Heights CA. The statement of significance for the Pymble Heights CA is quoted in the Statement of Heritage Impact for the proposal (Ex C, p 12), as follows:

“A largely intact portion of the 1892 Pymble Heights Estate subdivision encompassing 18 listed heritage items, with particularly intact Victorian, Federation and Inter-war period housing. The HCA is of aesthetic significance for its fine groups of Victorian, Federation period and Inter-war period houses, outstanding groups including the group of heritage items at Nos. 35-45 Grandview Street and 2 Wellesley Road (corner of Grandview Street) which illustrate the transition from Victorian to Federation period architectural styles; and the group of heritage items at 19-33 Church Street, an impressive group of high quality houses built from the 1890s on a ridge top affording district views: these Church Street houses were particularly prominent in historic photos c 1900 taken from Grandview or King Edward Streets looking north. The Pymble Heights [HCA] is of historical significance as it represents the high quality housing development for wealthy families which followed closely on the opening of Pymble railway station on 1 January 1890. Both Hoffbank at 33 Church Street and Kiewa at 29 Church Street, were constructed for the wealthy woolbroker Duncan Carson.”

19. The Ku-ring-gai Development Control Plan (KDCP) includes objectives and controls for setbacks. The minimum front setback on the high side of the road is 12m for a single storey dwelling and 14m for a two storey dwelling, at Part 4A.2 control 2. The minimum rear setback for sites with a depth greater than 48m, which includes Lot B, is 12m. The side setback for site width less than 20m is 2m and for site width greater than 20m is 12% of the site width, at Part 4A.2 control 10. The planning experts agreed that compliance with this control would require a side setback of 2.67m adjacent to the south-western side of the existing dwelling. The objectives for side setbacks include:

“1 To ensure that the appearance of new development is of a high visual quality, enhances the streetscape and complements good quality surrounding development.

2 To ensure development is appropriately located on site and

i) maintains streetscape character;

ii) ensures the amenity of neighbouring properties is maintained or enhanced;

iii) allows for the provision of landscaping and provide room for additional tree plantings to grow to maturity;

iv) facilitates solar access, daylight access and ventilation;

v) protects significant vegetation;

vi) facilitates efficient use of the site; and

3 To enable landscaping to be provided between neighbouring buildings, particularly where there are two storey structures.

4 To provide privacy and soften the visual appearance when viewed from the street and from the neighbouring property.

...

6 To ensure that side setbacks provide adequate solar access and day light access.

...”

20. KDCP does not identify buildings that contribute to the collective heritage significance of a heritage conservation area; as it does not adopt or incorporate any of the reports prepared as the basis for the local listings of the HCAs in Schedule 5 Part 2 of LEP 2015. KDCP refers applicants to Council’s Heritage Inventory Sheets for HCAs (see Part 19, “Introduction” and “Supporting Heritage Documentation”). Contributory properties are buildings and sites within a HCA which are deemed to exhibit one or more of the characteristics listed at Part 19, “What is a Contributory Property”. The heritage experts agreed that the existing dwelling is contributory to the heritage significance of the Pymble Heights CA, within the meaning of “What is a Contributory Property” at Part 19 of KDCP. I accept their agreement that the existing dwelling contributes to the collective heritage significance of the Pymble CA.

21. Part 19A.2 Control 2 states that subdivision will not generally be permitted where the curtilage and setting of a heritage item and significant buildings within or adjoining the site would be compromised.

22. Part 19D.2 Control 1 states that the siting of new buildings is to be consistent with the established pattern of built elements in the Pymble Heights CA, including the main dwellings, garages, carports and garden structures.

23. Part 19F.1 Control 2 states that development directly adjoining or in the vicinity of a heritage item or a Pymble Heights CA is to have regard to the form of the existing building including height, roofline, setback and building alignment. Part 19F.2 Control 3 states that, in addition to the setback controls, new development adjacent to a heritage item or a building within a Pymble Heights CA is to have a minimum 12m building separation and adjacent development is not to exceed a façade height of 8m and the building mass must step back above the 8m façade height.

Public submissions

24. Two resident objectors whose properties adjoin the site at the rear provided evidence onsite. The adjoining property owner engaged a heritage consultant to provide a written objection and to articulate the neighbour’s concerns in relation to the proposal. The concerns of the objectors can be summarised as:

• The proposed subdivision of the site will compromise the heritage values of the Pymble Heights CA;

• The area is characterised by large allotments. The landscape setting and curtilage of dwellings within the Pymble Heights CA is important to the character of the Pymble Heights CA;

• The future development of the subdivided lot will compromise the heritage significance of 10 Church Street because the future dwelling will damage the generous garden setting of the heritage item and it will impose itself between the two historic houses;

• The future development of the subdivided lot will impact on the privacy of the existing properties to the rear of the site;

• The proposal does not comply with the requirements of the planning regime.

Expert evidence

25. The applicant relied on the expert evidence of Mr Andrew Minto (planning) and Mr Brian McDonald (heritage). The respondent relied on the expert evidence of Mr Shaun Garland (planning), Ms Kate Higgins (heritage) and Mrs Robyn Askew (arboriculture and landscape).

26. The experts participated in the preparation of a joint report (Ex 2) and were not required for cross examination in court.

Contravention of the minimum subdivision lot size frontage dimension development standard of LEP 2015

27. Lot B has a width along a line 12m from the street frontage of the lot of 17.22m. Clause 4.1(3A) of LEP 2015 requires a width along a line 12m from the street frontage of the lot of 18m for a property within the R2 zone. Clause 4.1(3A) of LEP 2015 is a development standard pursuant to the definition of development standards in s 1.4 of the EPA Act, as follows, and it is not expressly excluded from the operation of cl 4.6 of LEP 2015:

development standards means provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of:

(a) the area, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land, building or work from any specified point;

...

28. The applicant provided a written request seeking to justify the contravention of the development standard pursuant to cl 4.6(3) of LEP 2015 (Ex B).

29. Clause 4.6(4) of LEP 2015 establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action [13]). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a “jurisdictional fact of a special kind”, because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action [14]). The consent authority or the Court on appeal must be satisfied that the applicant’s written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposed development will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4) of LEP 2015, as follows:

(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, and

(b) the concurrence of the Secretary has been obtained.

30. On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) LEC Act, but should still consider the matters in cl 4.6(5) of LEP 2015 (Initial Action [29]).

The applicant’s written request to contravene the development standard

31. The first opinion of satisfaction required by cl 4.6(4)(a)(i) is that the applicant’s written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) (see Initial Action [15]), as follows:

(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

32. The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action [25]).

33. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by the Chief Judge in Wehbe v Pittwater Council (2007) 156 LGERA 446 [42]-[51] (“Wehbe”) and repeated in Initial Action [17]-[21]. Although Wehbe concerned a SEPP 1 objection, the common ways to demonstrate that compliance with a development standard is unreasonable or unnecessary in Wehbe are equally applicable to cl 4.6 (Initial Action [16]):

1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard;

2. the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;

3. underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;

4. the development standard has been abandoned by the council;

5. the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).

34. The five ways to demonstrate compliance is unreasonable or unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action [22]).

35. The applicant’s written request justifies the contravention of the development standard on the basis that compliance is unreasonable or unnecessary because the objectives of the development standard are met, notwithstanding the numerical non-compliance with the minimum width requirement of 18 metres along a line that is 12 metres from the street frontage of the lot. The applicant’s written request states that the numerical non-compliance is minor as it is a numerically insignificant shortfall and as Lot B widens towards the rear of the site, the site is 18m wide along a line that is 14.3 metres from the street frontage of the lot.

36. The grounds relied on by the applicant in the written request under cl 4.6 must be “environmental planning grounds” by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action [24]). Therefore the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action [24]). The environmental ground relied on by the applicant in the written request is that the numerical non-compliance with the development standard is a result of the need to retain the existing dwelling house as it is identified as contributory to the heritage significance of the Pymble Heights CA.

37. The consent authority or the Court on appeal does not have to directly form the opinion of satisfaction regarding the matters in cl 4.6(3), but only indirectly form the opinion of satisfaction that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3) (Initial Action [25]).

38. I am satisfied, pursuant to cl 4.6(4)(a)(i), that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). The applicant’s written request defends the numerical non-compliance with the development standard as a justified response to the position of the existing dwelling and the need to retain the existing dwelling because it is identified as being contributory to the collective heritage significance of the Pymble Heights CA. I am satisfied that justifying the numerical non-compliance with the development standard on the basis that the configuration of Lot B has been determined by the position of the existing dwelling on the site can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action [23].

Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone

39. The second opinion of satisfaction required by cl 4.6(4)(a)(ii) of LEP 2015 is that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action [27]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) of LEP 2015 (Initial Action [26]).

40. I am not satisfied that the proposal is consistent with the following objectives of the minimum subdivision lot size development standard that is contravened: (a) to ensure that lot sizes and dimensions are able to accommodate development consistent with relevant development controls; (b) to ensure that lot sizes and dimensions allow development to be sited to protect cultural features including heritage items, remnant vegetation, and provide for generous landscaping to support the amenity of adjoining properties and the desired character of the area; and (c) to ensure that subdivision of low density residential sites reflects and reinforces the predominant subdivision pattern of the area.

The proposed subdivision does not reflect and reinforce the predominant subdivision pattern of the area

41. The particular configuration of the site and the position of the existing dwelling on the site has dictated the location of the boundary between the proposed lots, so that the existing dwelling is located entirely on Lot A. Lot A has a frontage of 42.89m and Lot B has a frontage of 13.17m. The resulting configuration of Lot B, particularly its narrow frontage, is contrary to and uncharacteristic of the predominant subdivision pattern of the area, because the predominant site frontage in the area is generous, with an average frontage of 37.75m and the narrowest frontage of 18.29m at 21 Church Street (Ex 2, appendix G).

42. Although the site area of Lot B exceeds the minimum subdivision lot size, the bulk of the area is located at the rear, southern corner of the site. Lot B, when viewed from the public domain, will appear to be a narrow and small site squeezed between two grand period houses.

43. Mr McDonald cited 31 King Edward Street, Pymble as an example of a nearby narrow allotment within the Pymble Heights CA. 31 King Edward Street has a site frontage of 15m on an allotment that is a re-subdivision of the original subdivision. The proposed Lot B is significantly different in configuration and character to 31 King Edward Street. 31 King Edward Street is a corner allotment with the garage located at the rear of the property and accessed from Church Street. In contrast, the proposed Lot B, which has an even narrower frontage than 31 King Edward Street, has to accommodate the driveway access across the frontage as there is no alternative access. Driveway access across the frontage of Lot B is constrained by two mature trees, the Himalayan Cedar (Tree 21) and the Chinese Hackberry (Tree 22). The narrow street frontage of Lot B will be dominated by the driveway crossover, as it will occupy a significant proportion of the frontage when viewed from the public domain. This would be an uncharacteristic feature within the Pymble Heights CA and the subdivision pattern in the area.

44. The front façade of 31 King Edward Street aligns with its neighbour and the design of the Federation styled dwelling orientates to the corner and to both street elevations, giving it a strong presence in the streetscape, which makes a significant contribution to the character of the Pymble Heights CA. A future dwelling on Lot B, in contrast, will be, according to the Proposed Building Zone nominated by the proposal, setback significantly behind the existing contributory dwelling on the site and the heritage item at 10 Church Street, so that the dwelling’s siting bears little relationship to its built context. For these reasons, the frontage dimension of 31 King Edward Street cannot be used to justify the narrow frontage of Lot B.

The proposed subdivision does not ensure that lot sizes and dimensions are able to accommodate development consistent with relevant development controls

45. The configuration of Lot B with a narrow frontage fanning out to a wide rear boundary is a significant constraint to the future development of the allotment and to achieving a development consistent with relevant development controls. Lot B is further constrained by its proximity to both the adjoining heritage item at 10 Church Street, the TPZs of the Camphor Laurel and Liquidambar and the existing dwelling on the site identified as contributory to the heritage significance of the Pymble Heights CA.

46. The Proposed Building Zone nominated by the proposal is positioned well back from the front façade and verandah of the existing dwelling on the site and it is uncharacteristically narrow when compared to the presentation of dwellings to Church Street within the Pymble Heights CA.

47. The proposed subdivision is not consistent with the objective of ensuring that lot sizes and dimensions are able to accommodate development consistent with relevant development controls because the design of a future dwelling on Lot B will not meet the relevant objectives of 4A.2, 19D.2, 19E.3 and 19F.1 of the KDCP.

The proposed subdivision does not ensure that lot sizes and dimensions allow development to be sited to protect cultural features including heritage items, remnant vegetation, and provide for generous landscaping to support the amenity of adjoining properties and the desired character of the area

48. The proposed configuration of the subdivision compromises the curtilage and setting of the existing dwelling on the site identified as contributory to the heritage significance of the Pymble Heights CA. The position and proportions of a future dwelling on the Proposed Building Zone would create a distracting anomaly in the streetscape and it would not respect the established pattern of built elements in the streetscape and the Pymble Heights CA.

49. The extremely narrow side setback of the existing dwelling of between 0.85 and 1.7m created by the proposed position of the shared side boundary is contrary to the controls and the objectives for side setbacks in the KDCP, which would require a side setback of 2.67m for the existing dwelling. The side setback proposed for the existing dwelling from the shared boundary fails to maintain the generous landscaped settings to dwellings typical of the streetscape; it fails to ensure that the amenity of the existing dwelling will be maintained or enhance and it fails to provide for meaningful soft landscaping in the side setback. The proposed side setback to the existing dwelling would appear abrupt, mean and uncharacteristic when viewed from the public domain and for this reason the position of the shared boundary does not provide an adequate curtilage to the contributory building.

50. The siting of the future dwelling on Lot B will not be consistent with the established pattern of built elements in the Pymble Heights CA, because the Proposed Building Zone results in a future dwelling that is unusually narrow so that the front elevation is dominated by the garage opening, and is positioned on the site so that it would appear, as described by Ms Higgins, to be squeezed between the contributory building and the heritage item, disturbing the rhythm of the streetscape. The gap between the future dwelling on Lot B and the existing contributory dwelling of approximately 3m is uncharacteristic in the Pymble Heights CA, because the properties within the Pymble Heights CA generally have generous distances and landscaping between dwellings and it is this feature that contributes to the grand scale of the Pymble Heights CA.

Conclusion

51. As the second precondition in cl 4.6(4) of LEP 2015 is not satisfied because the proposal is not consistent with the objectives of the contravened development standard, there is no power to grant consent to the proposal.

Orders

52. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No. 0092/18 for the subdivision of the property into two lots and minor alterations and additions to the existing dwelling is refused.

3. The exhibits, other than Exhibits 1 and A, are returned.

____________

Susan O’Neill

Commissioner of the Court

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Decision last updated: 14 March 2019