Finpac 88 Investments v Ku-ring-gai Council

[2005] NSWLEC 634

Land and Environment Court

of New South Wales

CITATION:

Finpac 88 Investments v Ku-ring-gai Council [2005] NSWLEC 634
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

Applicant:
Finpac 88 Investments Pty Ltd

Respondent:
Ku-ring-gai Council

FILE NUMBER(S):

10130 of 2005

CORAM:

Roseth SC - Brown C

KEY ISSUES:

Development Application :- erection of residential flat building - streetscape

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Ku-ring-gai Local Environmental Plan 194

DATES OF HEARING:

18-19/10/2005, 15/11/05

 
DATE OF JUDGMENT: 

11/18/2005

LEGAL REPRESENTATIVES:

Applicant:
Mr D. Baird, solicitor of Maddocks Lawyers

Respondent:
Mr P Rigg, solicitor of Deacons

JUDGMENT:

- 7 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC with Brown C

18 November 2005

10130 of 2005 Finpac 88 Investments Pty Ltd v
Ku ring gai Council


The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

JUDGMENT

1 Commissioners: This is an appeal against the deemed refusal by Ku-ring-gai Council (the council) of Development Application 1270/04 to demolish all existing structures and construct a residential flat building containing 42 dwellings on lot B DP 374006 and lots 1 and 2 DP 213733, known as 2-4A Finlay Road, Turramurra (the site).

2 Because of its proximity to the site and similarity of issues, a separate appeal to construct a residential flat building with frontages to the Pacific Highway and Lamond Drive, Turramurra (Appeal No 10131 of 2005, Lexinghouse 88 Pty Ltd v Ku ring gai Council) was heard concurrently.

The site

3 The site has a frontage of 83m to Finlay Road and an area of 3,083m2. The 44m long northern boundary adjoins a heritage-listed property at 1458 Pacific Highway. The 78m long eastern boundary adjoins a development site called Bluegums, for which a development application for 151 dwellings set in circular configuration has been lodged. The site now contains four dwellings, set back 9-10m from the street alignment.

The proposal and its history

4 The proposal provides for the demolition of all existing structures and the erection of a single residential flat building accommodating 42 dwellings, consisting of 4 x 1 bedroom apartments, 22 x 2 bedroom apartments and 16 x 3 bedroom apartments. The building is set back varying distances from Finlay Road with a minimum setback of 9 m. It "steps down" the sloping site with parking spread over five separate levels and the apartments over eight levels.

5 The council notified the development application to 61 surrounding properties and received 24 letters of objection and 4 letters of support in response.

Relevant planning controls

6 Ku–ring–gai Planning Scheme Ordinance and Local Environmental Plan 194 (LEP 194) zone the site Residential 2(d3). The proposed development is permissible with consent within this zone.

7 Development Control Plan No 55 – Multi-unit Housing Railway/Pacific Highway Corridor and St Ives Centre (DCP 55) became effective on 22 December 2004. Clause 2.7 states that the DCP applies to applications made after the date of commencement. The subject application was lodged before the date.

8 State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) and the Residential Flat Design Code (RFDC) also apply.

The issues

9 The council filed a Statement of Issues containing 14 issues with a number of sub-issues. With the submission of further amended plans the issues were reduced. The remaining issues can be grouped into the following main areas:

1) streetscape and visual impact,
2) built upon area,
3) landscape area including the amount of deep soil zone and tree retention,
4) site access, and
5) matters raised by objectors.

10 During the hearing the issues were further narrowed because the applicant offered to reduce the built-upon area. In the council’s view the reduction should achieve a larger setback to Finlay Street. In the applicant’s view, it would be more beneficial to use the reduction to achieve a larger setback from No 4A.

11 The Statement of Issues referred in several places to DCP 55 despite cl 2.7, which exempts the subject application. For applications lodged before 22 December 2004 the significance of DCP 55 is that it will apply to other similarly zoned sites in the vicinity. It is reasonable to assume that those sites will be developed in accordance with DCP 55. While DCP 55 does not apply to the subject application, it gives an indication of the future character of surrounding development on similarly zoned land.

The evidence

12 The parties agreed to the appointment of Mr Stuart Pittendrigh as the Court appointed arboriculture expert. The applicant provided evidence from Mr Nigel Dickson, an architect/planner and Mr Matthew Taylor, a landscape architect.

13 The council provided no expert evidence at the hearing and relied on the reports of its officers when the development was reported to council. In addition to receiving copies of the letters provided to the council when the development application was advertised, the Court heard the following residents on site, where they identified their specific concerns:

· Mr G Lodge, Principal Warrawee Public School – traffic, children’s safety, inadequate areas for pick up/drop off,

· Ms J Grant, 40 Monteigh St - children’s safety,

· Ms M Smith, 25A Finlay Rd – visual impact, traffic, loss of trees,

· Mr M Kier, 4B Finlay Rd - visual impact, traffic,

· Mr C Brown, 8 Finlay Rd – drainage, traffic,

· Mr R Carruthers, 40 Finlay Rd. – traffic, children’s safety and changed ambience of the area.

· Dr M Kier, 4B Finlay Rd. – loss of privacy, overshadowing, overpowering scale and loss of local character.

· Mr G Everingham, 14 Finlay Rd. –loss of trees, traffic.

· Mr S Smith, Finlay Rd. – traffic.

· Ms K Robert, 18 Denman St. - loss of trees.

· Mr B Gomes, 12 Finlay Rd. – traffic,

· Ms S Richardson, 59 Finlay Rd. – traffic.

Findings on matters raised by objectors
Traffic/parking

14 A large number of local residents expressed concern over the difficulty in gaining access to the Pacific Highway to travel in a southerly direction. Access can be obtained via Denman St and Duff St, although it is necessary to use an existing supermarket carpark to reach the Pacific Highway from Fox Valley Road. Access is also possible via Kissing Point Road; however, this route is circuitous.

15 It was common ground that the proposed development exceeds the council’s parking requirements. The council report addressed traffic generation, concluding that "the additional traffic generated by the development is calculated to be 10 vehicle trips per peak hour, an increase of around 8% to 15% over the counted peak hour traffic in Finlay Road." The post-development volumes were considered to be below the environmental capacity of Finlay Road. In the absence of any contrary evidence, we accept these conclusions.

16 We accept that the inability to turn right into the Pacific Highway from Finlay Road is a matter of concern for the residents, particularly in view of the increased densities in the immediate area. However it is not a matter that falls within the responsibility of the applicant and consequently it is not a valid reason for the refusal of the development application.

Character/ loss of trees/ visual impact

17 The concerns expressed by the local residents over the changing character and the loss of existing trees is understandable; however it is a consequence of the rezoning of the site and surrounding area. The level of development contemplated by the zoning will require the removal of existing vegetation. We accept the evidence of Mr Pittendrigh that the landscaping plan optimises the landscaping in the setback areas.

Children's safety

18 The location of the site adjoining the Warrawee Public School raised issues of children's safety, particularly from the school principal, Mr Lodge. While we accept that the development will not generate sufficient traffic to warrant any specific work being undertaken for the school, we knowledge the offer made on the applicant’s behalf by Mr Baird, the applicants advocate, to consult with the school to discuss ways in which children’s safety can be improved.

Drainage

19 The issues of drainage, flooding and overland flow are addressed in the council report. The report found the drainage arrangements to be acceptable subject to the imposition of appropriate conditions. In the absence of any other evidence, we accept the conclusions of the council officer.

Determination of issues and directions

20 Following the site view and further narrowing of the issues between the parties, the Court was requested to provide a determination on the outstanding issues, principally on how the building’s footprint should be reduced.

21 The Court made the following determination:

The parties have asked us to give our view on the outstanding issues in these appeals. It is common ground that the built-upon area in the Finlay Road application should be reduced by about 100m2.

The outstanding issue in the Finlay Road application is whether the reduction of the built-upon area should occur with a priority to maximise the distance from the boundary with 4B Finlay Road or to maximise the setback from the street alignment. In our view, the priority should be to maximise the distance from the boundary with No 4B. We think that the effect of LEP 194 is to change the character of the eastern section of Finlay Road irretrievably. The proposed setback is a minimum of 9m, with the majority of the building set back more than 10m. This area is adequate for landscaping. The proposal is opposite a school, not residences. If the reduction in built-upon area were given to the setback, it would achieve an additional setback of somewhat less than 2m. We do not think that the medium to high density character of this section of the street would change with that additional setback.

While we do not think that DCP 55 applies, we note that the proposed setback almost complies with the numerical setback of the DCP and fully satisfies the design objectives of the setback control.

22 The Court directed that the applicant prepare and file and serve, by 28 October 2005, amended plans to address the matters in the above determination. In addition, the applicant was to provide details of the footpath design and access arrangements across the footpath. The parties were to file the agreed conditions by 4 November 2005. Leave was granted to the parties to respond, otherwise orders would be made in Chambers after 8 November 2005.

Amended drawings

23 On 15 November 2005 the parties attended a Mention and the council advised the Court that the conditions and amended drawings addressed the earlier findings of the Court with the exception of the height requirement. Mr Rigg for the council submitted that the documentation provided by the applicant did not allow the council to adequately assess compliance with the height requirement. Ms Whitford for the applicant undertook to provide further information to allow the Court to address the concerns expressed by the council. Having reviewed the additional documentation we accept that the proposal satisfies the height requirements in LEP 194 considering the concessions available in cl 25K. In the circumstances the appeal is upheld and the application approved.

Orders

1. The appeal is upheld.

2. Development Application 1270/04 to demolish all existing structures and construct a residential flat building containing 42 dwellings on 2-4A Finlay Road, Turramurra is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of exhibits 5, D and F.

_________________ ___________________
Dr John Roseth G T Brown
Senior Commissioner Commissioner of the Court

23/11/2005 - the text was missing from the judgment - Paragraph(s) all paragraphs