Dazdon Pty Limited v Ku-ring-gai Council

[2008] NSWLEC 1271

Land and Environment Court

of New South Wales

CITATION:

Dazdon Pty Limited v Ku-ring-gai Council [2008] NSWLEC 1271

PARTIES:

APPLICANT
Dazdon Pty Limited

RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):

10183 of 2008

CORAM:

Tuor C

KEY ISSUES:

Development Application :- subdivision and construction of detached dwelling houses, removal of tree, allotment size and rear setbacks,
compatibility with character of the streetscape.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Ku-ring-gai Planning Scheme Ordinance 1971
Ku-ring-gai Development Control Plan 38 Residential Design Manual

CASES CITED:

Seaside Properties Developments Pty Limited v Wyong Shire Council (2004) NSWLEC 117

DATES OF HEARING:

24 and 25/06/2008

EX TEMPORE JUDGMENT DATE:

26 June 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr S Kondilios, solicitor
of Maddocks Lawyers

RESPONDENT
Dr J Smith, solicitor
of Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

26 June 2008

10183 of 2008 Dazdon Pty Limited v Ku-ring-gai Council

JUDGMENT

1 This is an appeal against the refusal by Ku-ring-gai Council (the council) of a development application (1211/2007) for a three lot subdivision and the erection of three detached dwelling houses at 152 Killeaton Street, St Ives (the site).

2 The key contentions in dispute between the parties can be summarised as whether:

1. the removal of the Turpentine tree (tree 31) is acceptable,
2 the lot sizes, and particularly the rear setback of the dwellings, are consistent with the character of the area,
3 an easement for drainage is required.

3 Mr L Fletcher, the parties’ single expert, provided evidence on these issues.

4 The site, its context, the history of the application and the planning controls are in the Amended Statement of Facts and Contentions and the Statement of Facts and Contentions in Reply.

Background

5 The site was originally part of four allotments (lots 1 - 4 DP 14488). These were re-subdivided in 1971 into new lots 4, 5, 6 and 7 DP 240562 to provide a road reservation.

6 In 1975, lots 1 - 3 DP 14488 were re-subdivided to provide two residential lots (lot 1 and 2 DP 579769) known as 156 Killeaton Road and 2A Yarrabung Road.

7 The road reservation was abandoned in 1991. Council approved a two lot subdivision (DA 786/04) and construction of two houses (DA 714/04) on the site in May 2005. The Roads and Traffic Authority (RTA) subsequently sold the site in October 2007.

8 The application was lodged on 25 November 2007 and notified with no submissions received. It was refused under delegation on 22 February 2008.

9 The application was amended to address Mr Fletcher’s comments. It was re-notified and one objection was received from Mr T Lorge, an adjoining neighbour to the rear, who addressed the Court on site. These amended plans are those for which approval is sought.

The site and its context

10 The site is located on the corner of Killeaton Street and Yarrabung Road, St Ives. It comprises four vacant lots, is irregular in shape with a frontage of 70.985 m to Killeaton Street and 12.2 m to Yarrabung Road. The total area of the site is 1999.8 sqm. The site slopes from the front north-west corner to the rear south-east corner. It has a mixture of mature native and exotic trees. The Turpentine tree is located to the front of the site. A row of mature Liquidambar trees is along the nature strip in Killeaton Street. A stormwater pipe runs between Killeaton Street and 158 Killeaton Street along the eastern boundary of the site.

11 Surrounding development includes single and two storey houses on large allotments. The predominant allotment size is over 930 sqm. However, there are smaller allotments at 121 and 121A Killeaton Street and 2B and 2C Yarrabung Road which are dual occupancy developments. 2A Yarrabung Road is 914 sqm and 150 Killeaton Street is 803 sqm.

The proposal

12 The proposal re-subdivides the site into three allotments. Lot 1 is located adjacent to the adjoining eastern property (158 Killeaton Street). It is an irregular shaped allotment with a frontage to Killeaton Street of 17.5 m and a variable depth of 35.375 m (west side boundary) and 46.075 m (east side boundary). The site area of Lot 1 is 711.10 sqm.

13 Lot 2 is located to the centre of the site between Lot 3 and Lot 1 with vehicle access from Killeaton Street. It is an irregular shaped allotment with a frontage of 19.895 m to Killeaton Street and a variable depth of 35.375 m (east side boundary) and 25.15 m (west side boundary). Lot 2 has a site area of 609.5 sqm.

14 Lot 3 is a corner allotment with frontages to Killeaton Street (33.585 m) and Yarrabung Road (12.205 m). It is irregular in shape with a site area of 679.2 sqm.

15 Two storey dwellings are proposed for each lot.

Planning framework

16 Under Ku-ring-gai Planning Scheme Ordinance 1971 (KPSO) the site is partly reserved for Proposed County Road purposes (lots 5, 6 and 7 DP 240562) and partly Residential 2(c) (lot 4 DP 240562). Subdivision and dwelling houses are permissible in both zones. There are no relevant controls that apply to the county road reservation. Mr Fletcher considered it appropriate to consider the proposal having regard to the standards that apply to the surrounding 2(c) zoned land.

17 Clause 58B of the KPSO applies to residential zones, including the 2(c) zone. It provides a minimum allotment size of 929 sqm and a minimum width of 18 m at a distance of 12.2 m from the street alignment.

18 Development Control Plan 38 - Residential Design Manual (DCP 38) applies to all land in Ku-ring-gai on which dwelling houses can be erected but relates only to detached dwellings on a single lot.

19 Mr Fletcher stated:

When considered in accordance with the provisions of cl 58B it is clear that the proposed allotments are non-compliant in terms of both allotment area and, in the case of proposed Lots 1 and 3, allotment width.

Perhaps more importantly, in my opinion, the proposed allotments are out of character with the predominant area and depth of allotments in the vicinity. Given the shape of the land and the history of its development it is no longer practical to provide allotments having a depth that is similar to the pattern of most surrounding properties. However, it is possible to provide allotments that are similar in allotment area.

Because of the shallow depth of the land, providing allotments of similar area to the neighbouring properties will result in wider than average allotments. This would enable those allotments to be developed with buildings that run across the allotments so as to be greater in width rather than depth and thereby providing opportunities for appropriate rear setbacks.

From my observations, generous rear setbacks of properties are a key characteristic of the locality. Accordingly, I agree with Council’s contention that a reduction from three lots to two lots would address this contention and I note that it would also provide more opportunity for appropriate rear setbacks of future dwellings.

I note the applicant points to two examples of dual occupancy development in the immediate vicinity and the fact that subdivision of those dual occupancy developments has created smaller allotments than the allotments proposed in the present application. However, in my opinion, those examples can be distinguished from the present case because in both instances they involve subsequent subdivision of existing attached dual occupancy developments. As a consequence, the building form is different being one large wide building, rather than two separate narrow buildings. Additionally, the subdivision having been approved after the built form was approved had no impact on the built form outcome.

20 Mr Fletcher’s principal concern in relation to the smaller allotments was that the rear setbacks were inadequate and uncharacteristic of the area. He held this opinion for both the original and the amended proposal, which had increased the rear setbacks.

21 Mr Fletcher acknowledged that there was minimal non-compliance of the building on lots 1 and 2 with the rear setback control in DCP 38 regardless of whether it was calculated in accordance with council’s or the applicant’s methodology. Although he noted that the covered patios intruded further into the rear setback area increasing the non-compliance. However, he considered that the control in DCP 38 was a minimum standard and that a “key characteristic of the area is the provision of generous rear setbacks, particularly for detached dwellings”. To be consistent with this character would require, in his opinion, a greater setback than the minimum. He stated, “a two lot subdivision would be more appropriate and would provide the opportunity to retain the Turpentine tree which is agreed to have a long life expectancy, a high landscape significance value and a high retention value”.

22 Under cross-examination Mr Fletcher accepted that:

• the proposal would be similar to that at 121, 121A and 123 Killeaton Street opposite,
• the depth of the proposed allotment and the rear setback areas of lots 1 and 2 would not be seen from the street,
• the proposal would not have an adverse impact on adjoining properties to the rear in terms of impacts such as overshadowing and privacy.
• the proposal complies with other numerical controls in DCP 38 such as FSR, height, site coverage and side setbacks.
• The non-compliance with the front setback was not an issue as the proposed dwellings reflect the adjoining development and each other.
• the rear setback of the proposal is similar to that approved for lot 1 in DA 714/04, although Mr Fletcher noted that being a corner site it is unclear whether the setback would be considered to be a rear setback and that the earlier proposal was setback substantially from the corner to retain the Turpentine tree.

23 Despite these acknowledgments Mr Fletcher maintained his opinion that larger allotments would provide more opportunity for generous setbacks, which are characteristic of the area.

Findings

24 I accept Mr Fletcher’s opinion and agree that the minimum allotment size and frontage width in the KPSO is an appropriate guideline against which the application should be assessed. The site is to be used for residential development, notwithstanding its road reservation zoning, and surrounding land is zoned residential.

25 This approach is consistent with the principle established by Bly C in Seaside Property v Wyong Shire Council [2004] NSWLEC 600 where at para 25 the Commissioner states:

As a matter of principle, at a zone interface as exists here, any development proposal in one zone needs to recognise and take into account the form of existing development and/or development likely to occur in an adjoining different zone…..Also in considering the likely future character of development on the other side of the interface it may be that the development of sites such as this may not be able to achieve the full potential otherwise indicated by applicable development standards and the like.

26 The area is characterised by large allotments with large areas of space around buildings, which provides opportunity for landscaping including significant canopy trees. An examination of the aerial photo would indicate that, other than the dual occupancy developments, the surrounding area has rear setbacks well in excess of the minimum requirements of DCP 38.

27 I note that the provisions of DCP 38 apply to all detached residential development in Ku-ring-gai and are therefore applicable to the different allotment sizes permissible in different zones. In determining whether the minimum controls are acceptable it is appropriate to consider the objectives of the control and the character of the area that is to be maintained.

28 I accept Mr Kondilios’ submission, for the applicant, that this does not require development to be the same as other development but that it should “fit in”. The two lot subdivision (DA 786/04) and construction of two houses (DA 714/04) demonstrate that subdivision and development on the site can occur which “fits in” with the character of the area. While house 1 in DA714/04 is a similar distance from the southern boundary as the proposal it provides a considerable area of open space on the corner of the site to enable the retention of the Turpentine tree. I note that the planning of house 1 is orientated towards the open space on the corner with the family room and terrace opening onto this area. As such, this is an appropriate response to the constraint of retaining the Turpentine tree and its corner location.

29 The current proposal removes the Turpentine tree, which is agreed by the parties to be significant. While this may be acceptable on a site that is of a size consistent with the character of the area, it is not acceptable on a site significantly smaller than other sites, particularly as it has been demonstrated that a reasonable development can occur on a site more characteristic of the area.

30 There is only minimal non-compliance with the rear setback control based on the applicant’s methodology. However, I consider the non-compliance based on the council’s methodology would be perceptible. The difference between a minimum of 5.5 m and 7.5 m would provide greater space but would still be less than existing rear setbacks in the area.

31 The proposal complies with the other controls in DCP 38. However, I accept Mr Fletcher’s evidence that compliance with minimum standards does not necessarily achieve a development, which “fits in”. The minimum standards can easily be met on sites below 929 sqm, but this does not necessarily maintain the character of the area of large sites with significant space around buildings and planting.

32 The objectives of the setback control in DCP 38 include the maintenance of streetscape character, ensure the amenity of neighbouring properties is maintained and enhanced, allow the provision of landscaping and provide room for additional tree plantings to grow to maturity and protect significant vegetation. Council did not raise streetscape as an issue and Mr Fletcher agreed that the rear setback area cannot be seen from the street, however the appearance of buildings and space around them as well as the retention and provision of significant trees are factors that are perceptible from the street and create the character of the street and the area.

33 For the reasons above I do not consider that proposed rear setbacks and allotment sizes would achieve these objectives and for these reasons the application must fail. It is not necessary therefore for me to adjudicate on the dispute between the parties in relation to the deferred commencement condition in relation to drainage.

34 The orders of the Court are:

1 The appeal is dismissed.
2 The development application (1211/07) for a three lot subdivision and the erection of three detached dwellings at 152 Killeaton Street, St Ives, is refused.
3 The exhibits, except Exhibits 6 and B, may be returned.

___________________

Annelise Tuor
Commissioner of the Court
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