Global Capital Properties Ltd v Ku-ring-gai Council

[2010] NSWLEC 1105

Land and Environment Court

of New South Wales

CITATION:

Global Capital Properties Ltd v Ku-ring-gai Council [2010] NSWLEC 1105
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

Global Capital Properties Pty Ltd
Ku-ring-gai Council

FILE NUMBER(S):

10495 of 2009

CORAM:

Tuor C - Dixon C

KEY ISSUES:

DEVELOPMENT APPLICATION - DEVELOPMENT STANDARDS - HERITAGE :- SEPP1 to frontage control
impact on adjoining heritage item
adequacy of setback and landscaping
bulk and scale

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Ku-ring-gai Planning Scheme Ordinance
Ku-ring-gai Multi Unit Housing Development Control Plan No 55
State Environmental Planning Policy No 1

CASES CITED:

Wehbe V Pittwater Council [2007]NSWLEC 827

DATES OF HEARING:

27,28 and 29 January and
16 and 20 February 2010

 
DATE OF JUDGMENT: 

7 May 2010

LEGAL REPRESENTATIVES:

Applicant

Mr M Staunton (Barrister)
Veritas Legal Lawyers

Respondent

Mr I Hemmings (Barrister)
HWL Ebsworth Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C
Dixon C

7 May 2010

10495 of 2009(2) Global Capital Properties Pty Ltd v
Ku-ring-gai Council

JUDGMENT

Introduction

1 This is an appeal under s 97 of the Environment Planning and Assessment Act 1979 (the Act) against the refusal by Ku-ring-gai Council (the council) of a development application for a residential flat building at 6A-8 Buckingham Road, Killara (the site).

2 The key contentions between the parties relate to whether:

i. the objection under State Environmental Planning Policy No 1 – Development Standards (SEPP 1) to the frontage control in cl 25I(3) of Ku-ring-gai Planning Scheme Ordinance (KPSO) is well founded.

ii. the side setbacks are sufficient to provide adequate trees to screen the built form and provide a landscape setting.

iii. the proposal will have an adverse impact on the significance of the adjoining heritage item at 10 Buckingham Road

Background and proposal

3 On 17 December 2009, the Court determined that the amended development application was “other than minor" and triggered the mandatory cost provision in section 97B of the Act (Globe Capital Properties Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 1415).

4 The amended application seeks approval to demolish the existing residential dwellings on the site to construct a residential flat building with two part 5 part 6 storey buildings (Buildings A and B) comprising 32 units and parking for 66 cars.

The site and locality

5 The site is located on the southern side of Buckingham Road near its junction with the Pacific Highway. It consists of three allotments (lots 1, 3 and 4 in DP414101) and is irregular in shape with a total site area of 3792.2sqm. It has a frontage to Buckingham Road of 28.03m and a rear boundary of 64.31m. The site has a depth of 164.72m along its irregular eastern boundary and 91.86m along its western boundary.

6 The site slopes steeply from Buckingham Road to its rear boundary and there are a number of trees. 6A Buckingham Road and 8 Buckingham Road are each developed with a detached houses. 6A Buckingham Road is accessed by a steep driveway along the eastern side of the site.

7 There is a drainage easement across the south eastern corner of the site.

8 The site adjoins “Southdean”, a heritage item to the west (10 Buckingham Road) and a detached dwelling on a battle axe allotment (8A Buckingham Road) accesses off a driveway which adjoins the western boundary of the site. A two storey house (6 Buckingham Road) is to the east which has approval to be demolished as part of the redevelopment of 6-8 Buckingham Road for a residential flat Building. A residential flat building is located to the south east at 564-568 Pacific Highway. The Killara Golf Course adjoins the rear of the site to the south, which also has bowling greens. Opposite the site is a dwelling which is a heritage item (11 Buckingham Street). A residential flat building is under construction on the corner of Buckingham Road and the Pacific Highway.

Planning controls

9 The site is zoned Residential 2(d3) under the KPSO. The development is permissible with consent.

10 The site adjoins properties in different residential zones; Southdean is zoned 2(b), the Killara Golf Course is zoned 2(e) and 8A Buckingham Road is zoned 2(c2).

11 Ku-ring-gai Multi Unit Housing Development Control Plan No 55 (DCP 55), SEPP1 and State Environmental Planning Policy No 65 – Design quality of residential flat development (SEPP 65) are also relevant.

The evidence

12 The hearing commenced on site where the Court heard evidence from residents whose main concerns related to the increase in traffic likely to be generated by the development and its impact on the existing roads including the availability of parking in Buckingham Road. The owner of Southdean was concerned about the impact that the proposal would have on the setting of his house when viewed from the street and from the house to the south. He was particularly concerned about the height and bulk of the proposal, which would be visible from the rear and verandah of Southdean and the amount of landscaping to screen the development. The owner of 8A Buckingham Road also raised issues of the height and bulk of Building B when viewed from her property. She considered the building should be set back further from the rear boundary to align with the setback of other dwellings. She also raised concerns about privacy impacts and the loss of sunlight to her living areas.

13 The representatives of the Golf course were concerned about the impact of overshadowing from the proposed canopy trees on the bowling green. They considered the extent of overshadowing would adversely impact on the growth of turf and result in the bowling green closest to the pavilion being unable to be used.

14 The Court heard expert evidence from:

For the council

· Ms K Munn, planner

· Ms J Bautovich, architect and urban design

· Ms T Beavan, landscape architect

· Mr P Dighnam, heritage architect

· Mr Gunns, architect

For the applicant

· Mr W Gosling, planner

· Ms M Jelicic, architect for the proposal

· Mr N Shields, arborist and horticulturalist

· Mr C Isreal, heritage architect

SEPP 1 objection

15 Ms Munn and Mr Gosling agreed that the minimum street frontage of the site does not comply with cl 25I(3) of the KPSO, which requires that sites of 1800sqm or more have a minimum street frontage of 30m. The site has a street frontage of 28.03m. They agreed that cl25I(3) was a development standard which could be varied subject to compliance with SEPP 1.

16 The underlying purpose of cl 25I(3) is not stated in the KPSO but the experts agreed that the following objectives for residential zones in cl 25D(2) are the relevant objective of the control:

(c) to provide side setbacks that enable effective landscaping, tree planting between buildings, separation of buildings for privacy and views from the street to rear landscaping.

17 Mr Gosling prepared a SEPP 1 objection which concluded that compliance with cl25I(3) was unnecessary and unreasonable in the circumstances of the case for the following reasons:

· The site cannot be amalgamated with another site given the approval of a residential flat building at 2-8 Buckingham Street and the heritage item at 10 Buckingham Street.

· The 2m setback of the basement provides sufficient deep soil planting.

· The site width does not comply with the standard at the frontage of 8 Buckingham Street but the width of the site at 6A Buckingham Street exceeds the 30m control.

· The development provides a minimum of 12m setbacks between habitable rooms of the proposed residential flat building at 2-6 Buckingham St.

· The development provides adequate setbacks to the adjoining heritage building and does not adversely impact on its significance.

18 In Mr Gosling’s opinion the non compliance with the standard is also reasonable given that the basement is the minimum width possible due to the turning circles, level changes across the site and parking numbers.

19 Mr Gosling stated that if plants along the side setback of Building A can be sustained at a height of up to 15m then the objective of the control is satisfied.

20 In Ms Munn’s opinion the proposal does not provide adequate deep soil landscaping or side setbacks and therefore does not achieve the objective of the control. Further the size of the building is too large for the site width and results in a building of excessive bulk and scale. In particular, Ms Munn was concerned about the proximity of the basement level of Building A which is setback 2m from the east and west boundary and protrudes up to 5.06m above natural ground level at its south west corner. The basement does not comply with the 6m setback above and below ground in Part 4.3 control C-1(a) and C3 of DCP 55 and does not provide sufficient width for landscaping that would effectively screen the basement or the levels above from Southdean and 8A Buckingham Street. In her opinion this indicated that the proposal did not meet the objective of the control.

21 Ms Munn did not agree that it had been demonstrated that the site could not be amalgamated with 2-8 Buckingham Street nor that the basement width could not be reduced. She referred to previous applications for the site, which had provided a 6m setback but had been refused on other grounds.

22 Ms Munn acknowledged that the site was suitable for multi unit housing in the form of a residential flat building but considered that the variation to the standard was not unnecessary or reasonable in the circumstances of the case.

Findings

23 Clause 25I(3) of KPSO provides:

Minimum street frontages
The standards for street frontages set out in the Table to this subclause apply to a site used for the purpose of multi-unit housing:
Table - Minimum street frontages
Site area Minimum street frontage 1,800 square metres or more 30 metres

1,200 square metres or more 23 metres
but less than 1,800 square
metres

24 The site exceeds 1800sqm but does not have a minimum street frontage of 30m. The applicant has provided a SEPP 1 objection. Mr Hemmings, for the applicant, submits that in deciding whether to uphold the SEPP 1 objection the Court must determine whether the site is suitable for a residential flat building despite the non compliance of the street frontage based on the circumstances of the case and not the merits of the particular development. In his submission the street frontage is a characteristic of the site and does not change if the development changes.

25 We accept that the SEPP 1 objection should be considered independent of and as a precondition to an assessment of the merits of the application, however, it is not simply a matter of determining whether the site is suitable for any form of residential flat building in circumstances where the frontage does not meet the minimum control. Clearly the frontage of the site is independent of the development proposed but the ability of the site to accommodate a residential flat building will change depending upon factors such as the size of the site and the size of the development.

26 Residential flat building is defined under cl 25B of the KPSO as:

Residential flat building means a building containing three of more dwellings

27 Clearly the site can accommodate a residential flat building containing three or more dwellings. However, cl25I(3) requires that larger sites require larger frontages.

28 We acknowledge that the drafting of cl 25I(3) is unclear as it implies that a residential flat building would not be permitted on a site that is 1,800m or more which does not have a 30m frontage, whereas a residential flat building would be permissible on a smaller site with only a 23m frontage. However, the purpose of this subclause when read conjunctively with other subclauses in cl25I would appear to be that sites with different characteristics can accommodate different forms of residential flat buildings. Generally the larger the site the larger the development. For example, cl25I(5) permits a different number of storeys depending upon the size of a site; the larger the site the more storeys.

29 We therefore do not accept Mr Hemmings submission that the circumstances of the case involve only a consideration of whether the site can accommodate any residential flat building but also a consideration of whether the residential flat building proposed meets the objectives of the control. This approach is consistent with that of Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 in which he comprehensively examines the requirements to uphold an objection under SEPP 1. Upholding a SEPP 1 objection is a precondition, which must be satisfied before the proposed development can be approved on a consideration of the merits. His Honour states that the Court must be satisfied of the following three matters:

38 First, the Court must be satisfied that “the objection is well founded” (clause 7 of SEPP 1). The objection is to be in writing, be an objection “that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case”, and specify “the grounds of that objection” (clause 6 of SEPP 1). The requirement in clause 7 of SEPP 1 that the consent authority be satisfied that the objection is well-founded, places an onus on the applicant making the objection to so satisfy the consent authority: see North Sydney Municipal Council v Parlby, unreported, LEC No. 10613 of 1985, 13 November 1986, Stein J, p. 8.

39 Secondly, the Court must be of the opinion that “granting of consent to that development application is consistent with the aims of this Policy as set out in clause 3” (clause 7 of SEPP 1). This matter is cumulative with the first matter (it is prefaced by the words in clause 7 of SEPP 1 “and is also”). The aims and objects of SEPP 1 set out in clause 3 are to provide “flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act”. The last mentioned objects in s 5(a)(i) and (ii) of the Act are to encourage:
“(i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment,

(ii) the promotion and coordination of the orderly and economic use and development of land.”

40 Thirdly, the Court must be satisfied that a consideration of the matters in clause 8(a) and (b) of SEPP 1 justifies the upholding of the SEPP 1 objection : Fastbuck$ v Byron Shire Council (1999) 103 LGERA 94 at 100 and City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262 at 291. The matters in clause 8(a) and (b) are:
“(a) whether non-compliance with the development standard raises any matter of significance for State or regional environmental planning, and

(b) the public benefit of maintaining the planning controls adopted by the environmental planning instrument”.

30 At [42] to [43], His Honour then proceeds to discuss ways of establishing that compliance with the standard is unreasonable or unnecessary, relevantly he states:

42 An objection under SEPP 1 may be well founded and be consistent with the aims set out in clause 3 of the Policy in a variety of ways. The most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-
compliance with the standard…

43 The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served).

31 The planners agree on the underlying objective of the control being the objective of the residential zone in cl 25D(2)(c). They agree that the control would be met if landscaping of sufficient height along the side setback can be achieved but disagree on whether this is will occur on the basis of the landscape evidence.

32 There is no stated objective for subcl25I(3) however, cl25I(1) provides heads of consideration for site requirements and development standards for multi unit development which provide:

(1) Heads of consideration for consent authority
Before granting consent to development for the purpose of multi-unit housing on land to which this Part applies, the consent authority must take into account the following:
(a) the desirability to provide a high proportion of deep soil landscape to the site area,
(b) the impact of any overshadowing, and any loss of privacy and loss of outlook, likely to be caused by the proposed development,
(c) the desirability to achieve an appropriate separation between buildings and site boundaries and landscaped corridors along rear fence lines,
(d) the environmental features that are characteristic of the zone in which the site is situated by requiring sufficient space on-site for effective landscaping,
(e) the desirability of adequate landscaping so that the built form does not dominate the landscape,
(f) how the principles of water cycle management can be applied to limit the impacts of runoff and stormwater flows off site.

33 It would appear that the cumulative purpose of the controls in cl25I, including cl25I(3), is to ensure that sites are of sufficient size and dimension to accommodate residential flat buildings of a particular size to achieve the relevant heads of consideration in cl25I(1). These are similar in intent to the objective of the residential zone in cl 25D(2)(c) referred to by the experts as being the underlying purpose of the control. In relation to the frontage control the relevant heads of consideration relate to providing a site with sufficient width for deep soil landscape area (a), amenity impacts (b), separation between buildings and side boundaries(c), characteristics of the zone and effective landscaping (d), and adequate landscaping so the built form does not dominate the landscape (e).

34 The key disagreement between the experts is that the setback of the basement does not provide adequate width for deep soil landscaping that will screen Building A. The experts agree that the setback of the building above the basement is adequate but disagree that the landscaping will achieve sufficient height to screen these levels. Both planners agree that if adequate landscaping is provided to screen the building then the objective of the standard is met. They both defer to the landscape evidence to determine whether this will be achieved.

35 For the reasons that we discuss below we find that the 2m setback of the basement will not provide deep soil for adequate landscaping so that the built form does not dominate the landscape. Further, we do not accept that the basement is the minimum width or that there is not an option to provide common access with 2-8 Buckingham Street and thereby provide greater side setbacks. Compliance with the cl25I(3) is therefore not unreasonable or unnecessary because the objectives of the development standard are not achieved notwithstanding non-compliance with the standard. For this reason the application must fail. For completeness, and if we are wrong on this conclusion, we have assessed the merits of the application in relation to the main contentions raised by council.

Deep soil landscaping

36 The parties disagreed on whether the proposal meets the requirements for cl25I(2)(c) which provides that:

A site with an area of 1.800 square metres or more is to have deep soil landscaping for at least 50% of the site area.

37 Ms Beavan and Mr Gosling agreed in their initial joint report (ex 8) that the proposal provided 43% deep soil landscaping. A series of amended landscaping plans increased this amount. The latest plan (ex H) achieves the 50% requirement but is dependent upon the realignment of an existing easement and stormwater pipe within the basement car park of Building B.

38 Mr Staunton, for the council, submits that this arrangement is uncertain as council has not been consulted about the relocation of its easement, the proposal is inconsistent with its policy dealing with easements and the size of the pipe may impact on the car park spaces. If the easement and pipe cannot be relocated the proposal does not comply with the 50% requirement and, as no SEPP1 objection has been submitted, the proposal is prohibited and cannot be approved.

39 Mr Hemmings submits that the easement is an inter party matter and not a relevant consideration under s79C of the Act. There is already a requirement to extinguish the easement and create another one included as a deferred commencement condition. Further, the proposal is not inconsistent with council’s policy on drainage easements and there is sufficient certainty that the proposal will meet the requirements for deep soil planting and no SEPP 1 objection is required.

Findings

40 It is not necessary for us to adjudicate on these competing submissions as the proposal fails on matters other than the potential prohibition of the application through the absence of a SEPP 1 objection. As discussed below, we find that the side setbacks are not of sufficient width to provide adequate deep soil planting to screen the building. If such setbacks were provided this would also increase the amount of deep soil planting and eliminate this issue.

Setbacks and landscaping

41 The key dispute between Ms Beavan and Mr Shields is whether the 2m side setback is of sufficient width to provide landscaping in scale with the building which will effectively screen the bulk of the proposal, particularly when viewed from Southdean.

42 We understand that the experts original joint report (ex 9) was based on Landscape Plan No: LS-01–DA Issue C (ex A) this plan indicated tree planting of 13 x Elaeocarpus reticulatus (Blueberry Ash) with a mature size of 6-8m along the western boundary adjoining the basement carpark of Building A. The landscape plan was subsequently amended during the hearing and Issue F (ex H) is the version for which consent is now sought. This includes the following mixture of trees along this section of the western boundary:

Tree Approximate mature size
9 x Elaeocarpus reticulatus (Blueberry Ash) 6-16m,
4 x Acacia elata (Cedar Wattle) 10-20m
3.x Syzygium paniculatum (Lilly Pilly) 15m
4 x Waterhousea floribunda (Lilly Pilly) 15m
4 x Pittosporum undulatum (Native Daphne) 6-8m

43 Both plans also include understorey planting along this boundary. However, Ms Beavan stated that there would not be adequate width to enable layering of plants of different sizes, rather the planting will be in a single row.

44 Ms Beavan and Mr Shields agreed in their first joint report that:

The planting will achieve a green wall though it will not be in scale with the building. The confined two metre width planting bed will result in less dense canopies and restricted height of tree specimens. The proposed planting will achieve screening to the first floor of the building approximately 6-8 metres. The overall effect will not be consistent with the objectives which require provision of tall tree planting to side setbacks of Building A.

45 Ms Beavan and Mr Shields reviewed the amended tree schedule in version D of the landscape plan (ex G). The tree schedule is the same as in version F along the western setback area of Building A. They disagreed on the height that the proposed trees would achieve given the conditions in which they would be planted.

46 Ms Beavan and Mr Sheilds agreed that the residential zone objectives in cl25D(2)(b),(c) and (e) of the KPSO require trees to be in scale with the built form. In Ms Beavan’s opinion this should be at least the same height as the building which would require a height of 12m up to 19m in the south west corner of Building A.

47 In Ms Bevan’s opinion the heights shown in ex G are maximums that can be achieved in unconstrained conditions. In her opinion the constraints of the site, including the proximity of the basement, asymmetrical root plate, ground water flow, location of services and maintenance issues would limit the height of the trees and their ability to screen the building.

48 Ms Beavan stated that the achievable heights and viability of the trees relied on borrowed landscaping along the shared driveway of the adjoining properties to the west. In her opinion this was inappropriate as this area is likely to be used for services and it places a burden on the adjoining owners for the ongoing protection of the trees and their ongoing viability, particularly for excavation for the maintenance of services. This is inconsistent with cl25L(3) which states that landscaping required to screen a development from an adjoining property (in a different zone) is to be provided on the site.

49 In particular, Ms Beavan agreed that the Cedar Wattle is quick growing but, even if it reached 20 m, it is short lived, which is not sustainable planting and will need to be removed in 7-15 years and this is difficult in a confined space. In her opinion the provision of nursery planting in this constrained location would suppress the growth of other trees and achieve only short term screening.

50 Ms Beavan disagreed with Mr Shields’ statement that the potential height of the Blueberry Ash is 10 to 15m which contradicts his previous opinion of 6-8m. She agreed that Blueberry Ash is of columnar form and is appropriate for mid storey screen planting being representative of the Blue Gum High Forest. In her opinion, even if it reached a full height of 8m this would screen to the ceiling height of level 3 at the northern end of building A and level 1 at the southern end of Building A.

51 Ms Beavan stated that the lilly pilly is a broad canopy tree, which will require maintenance and pruning to clear the height of the building which will expose them to pathogens and that they will not reach the height indicated by Mr Shields.

52 Mr Shields considered that the landscaping plan is achievable due to the deep soil planting available to the east and west of the site. Although he recognised that a 6m setback would provide more space for the trees to grow on the site. Further he did not agree that the constraints of the site and the maintenance issues outlined by Ms Beavan would inhibit the trees achieving their full height or their viability. In his opinion this was dependent upon factors such as the choice of plants, their stock, how they are planted and ongoing maintenance. He accepted that the trees would be reliant on the adjoining properties but did not consider this to be unusual or unacceptable. Nor did he consider that the removal of the Cedar Wattles would pose difficulties or suppress the growth of other trees. In Mr Shields’ opinion the tree species proposed would be in scale with the building and provide appropriate screening.

53 Mr Shields explained that he had altered his opinion about the effectiveness of the screening based on the revised tree schedule and his adjusted estimate of the height that the Blueberry Ash could achieve. This change is based on his observation of this tree species in his front garden and on further information on Blueberry Ash from the Australian National Botanical Gardens. In his opinion the Blueberry Ash could achieve a height of 10m-12m in this location which would screen to the ceiling of level 4 at the northern end of Building A and eye height of level 2 at the southern end of Building A.

54 An elevated walkway is proposed, which is setback 2 m from the eastern boundary to Building A and elevated up to 5m above the existing ground level. Ms Beavan and Mr Shields agreed in the first joint statement that:

The proposed planting of Eucalyptus saligna (Sydney Blue Gum) and Eucalyptus paniculate (Grey Ironbark) as shown on the eastern boundary on the landscape plan would not be viable. The proposed planting will achieve screening to the first floor of the building. The overall effect will not be consistent with the objectives which require provision of tall tree planting to side setbacks of Building A. Regular maintenance of the canopies will be required to provide clearance to the elevated walkway.

55 The landscape plan was amended to include the same range of species within the eastern side setback as the western side setback. Ms Beavan maintained her concern about the impact of the walkway, which would require lopping of the canopy trees and restrict their growth and screening.

Findings

56 PartIIIA of the KPSO provides a number of objectives in relation to landscaping which include the objectives for residential zones in cl 25D(2):

(e) to provide built upon area controls to protect the tree canopy of Ku-ring-gai, and to ensure particularly the provision of viable deep soil landscaping in order to maintain and improve the tree canopy in a sustainable way, so that tree canopy will be in scale with the built form,

57 The heads of consideration in cl 25I:

(e) the desirability of adequate landscaping so that the built form does not dominate the landscape,

58 The only numerical control for side setback controls is cl25L, which provides:

25L Zone interface
(1) The objective of this clause is to provide a transition in the scale of buildings between certain zones.
(2) The third and fourth storey of any building on land within Zone No 2 (d3) must be set back at least 9 metres from any boundary of the site of the building with land (other than a road) that is not within Zone No 2 (d3).
(3) Landscaping required to screen development from any adjoining property must be provided on the site and must not rely on landscaping on the adjoining property.

59 The proposal complies with the numerical setback control in cl25L and does not offend cl25M which provides that controls, including setbacks, are non discretionary; an application cannot be refused if it complies with these non discretionary controls. The parties disagreed on whether the proposal meets the qualitative control in cl25L(3).

60 Clause 25I(2) includes minimum standards for deep soil planting. As discussed above the parties disagree on whether the proposal meets the numerical requirement to have deep soil planting of at least 50% of the site.

61 DCP 55 also includes objectives and controls in relation to setbacks (4.3) and landscaping (4.1) which relevantly include the following design objectives for Part 4.3:

O-1 Buildings set behind gardens dominated by canopy trees which screen the buildings, soften the urban form and maintain the garden character of Ku-ring-gai.
O-2 Adequate space between sites to enable effective landscaping, tree planting between buildings, separation of buildings for privacy and views from the street to rear landscaping.

62 The design controls for Part 4.3 require a side setback of 6m (C-1) which extends both above and below ground and applies to car parking levels (C-3)

63 The Design Objectives and Controls in Part 4.1 relevantly include:

O-1 Integration of the planning and design of buildings with the site’s landscaping
O-2 Sufficient deep soil for [planting and retaining large canopy trees on every site.
O-3 Landscaping that is appropriate to the scale of the development
O-4 Minimal visual impact of hard building surfaces by vegetation and trees when viewed from the public domain and neighbouring properties.

C-2 Landscape design is to ensure that the built form blends with the natural landscape. This is to be achieved by:
i) selecting species with an appropriate range of height and foliage density, and
ii) allowing for adequate deep soil planting zones for established screen planting where required.
C-3 Driveways shall not be located in side setbacks as these areas are to consist of deep soil landscaping

64 In summary, the purpose of these controls is to ensure that multi unit development reflects and enhances the existing landscaped and treed character. The controls also seek to minimise the visual impacts relating to height and bulk of the development by providing effective landscaping in scale with the buildings and so that the built form does not dominate the landscape.

65 The key dispute between the parties relates to the effectiveness of the landscape setting along the side boundaries, principally the western boundary, which adjoins a heritage item that is zoned 2(b). While we accept that the landscaping is not required to totally screen the development from view to be effective, however, it should provide trees that will be of a similar scale to the building. This would require some trees to achieve a height, which is relative to the height of the building. We note that the C-8 in Part 4.1 of DCP55 requires the site to provide a minimum number (13) of tall trees capable of reaching a minimum height of 13m. The proposal exceeds this requirement and no issue is raised with the size of trees proposed in the front and rear setback areas and adjoining Building B. However, we accept Ms Beavan’s evidence that the trees proposed along the western side boundary adjoining Building A are unlikely to reach their full height or to be in scale with the building. The 2m setback of the basement, particularly where this extends up to 5.06m above ground level, places constraints on the growth potential of the trees proposed in the landscape plan such that effective landscaping will not be achieved and the building will dominate the landscape.

66 We also accept Ms Beavan’s evidence that the elevated walkway will interfere with the effectiveness of the canopy trees along the eastern side of Building A.

67 In reaching this conclusion we note that both Mr Shields and Ms Beavan held similar opinions about the effectiveness of the landscaping in their first joint report. The reasons given for Mr Shields revised opinion are difficult to accept and we have given little weight to his evidence.

68 Further, the experts agreed that due to the setback of the basement the landscaping is reliant on the space provided by the adjoining properties. This conflicts with the intent of cl25L(3) that landscaping should be provided on site and not rely on landscaping of adjoining properties.

69 For the reasons we discuss below we are also not satisfied that the basement is the minimum width or that a greater setback than 2m could not be provided. Clearly a setback of 6m as required by C-1 of Part 4.3 of DCP 55 would provide space for canopy trees along the side boundaries of the site without creating the issues raised by Ms Beavan.

70 The reduced setback relates to the non compliance with the frontage control in cl25I(3) discussed above. We find that the objectives of this control are not met as landscaping which meets the relevant objective of the KPSO is not provided. The basement should be reduced in width or the height of the building reduced to be in scale with the landscaping that can realistically be achieved within the side boundary setbacks.

Basement width

71 Ms Munn and Mr Gosling held different opinions about the constraint imposed on the development by the basement, particularly the ability to increase the setbacks along the boundaries. Ms Munn considered the width of the basement could be reduced based on other applications for the site. Mr Gosling stated that the basement was the minimum width that could be achieved given the constraints of the site, including the location of the driveway, the slope of the site and the requirements of council for garbage collection.

72 The hearing was adjourned to provide further evidence on whether the basement was designed to the minimum width. The applicant provided options for the basement design (ex M) to demonstrate that an alternate design would not be feasible or would raise unacceptable consequences. The council also provided an alternate basement design to demonstrate that complying side setbacks could be achieved. None of the options were presented as an alternate design for the basement.

73 The options were reviewed by Mr Gunns, Ms Munn, Mr McLaren, Ms Jelicic, Mr Gosling and Mr Brodie who prepared a joint report (ex N). This report addressed a further scheme, which placed the garbage room at level 1 with a turning circle.

74 Mr McLaren explained that the width of the current basement is based on the turning circles required for a garbage truck to use the basement. The initial understanding was that the garbage truck would collect garbage from the basement under both Buildings A and B. However, this was clarified that all the garbage would be collected by the garbage truck from the garbage room in Building A (Drawing DA05 Issue E). The truck would then proceed to the next lower level to do a three point turn and then return. Mr McLaren stated that the garbage room is undersized and requires all the bins to be moved from Building B to Building A, a distance of about 70m up steep gradients or through resident lifts. In his opinion, all garbage loading should occur at ground level, which would eliminate the need for the garbage truck to travel through the building and the larger turning circle.

75 The experts agreed that the scheme in Ex N would provide an increased setback of up to 4.5m. The traffic experts agreed that there were no engineering concerns but the planners and architects were concerned that the scheme would involve the loss of unit 1, which is currently 1.2m below ground and its replacement with the garbage room. Mr Gunns considered that the façade to screen the garbage room could present as a decorative base to the building and have an acceptable streetscape impact. Mr Gosling accepted that the façade could be treated but that it would provide a residential interface with the street of less quality than the proposal. The scheme would also require an increase in the height of the building and a possible extension of the length of the basement.

76 Mr Gunns also provided an option which provided 6m setbacks but which involved a significant redesign of the basement and in the opinion of the applicant’s experts raise significant amenity impact for the residents of 10 Buckingham Street as it proposed an open drive way for part of its length.

Finding

77 Without examining the merits of any of the alternate options for the garage we accept Mr Staunton’s submission that the options demonstrate that greater side setbacks can be achieved which would provide increased separation and a larger width of deep soil for effective landscaping to screen the building and reduce the impact of its height and bulk, particularly when viewed from Southdean.

78 The proposal does not meet the numerical control or the objectives for setbacks in Part 4.3 in DCP 55. We do not accept that the constraints of the site or of the basement design justify the non compliance or that this could not be addressed by an alternate design or a common driveway with 2-6 Buckingham Street.

79 Mr Hemmings submitted that the basement design was based on certain assumptions, including council requirements for garbage collection. The application should therefore not be refused on this basis but rather redesigned. We do not consider a redesign appropriate given that leave has already been granted for amended plans and the extent and uncertainty of the further changes that may be required.

Heritage

80 The main area of disagreement between Mr Israel and Mr Dighnam was whether the proposal would dominate Southdean and its setting and thereby reduce its heritage significance.

81 Mr Dighnam was principally concerned about the relationship of Southdean with Building A, which he considered should not be further forward of Southdean as required by C-1(iii) in Part 3.5 of DCP 55. This would increase its visibility from Buckingham Road and re-establish the historic relationship of Southdean and its entrance driveway with the Pacific Highway. Mr Dighnam acknowledged that Southdean is currently obscured from view by the existing house at 8 Buckingham Road and existing landscaping. Building A will be setback further than the existing house but Mr Dighnam did not accept that this would improve the setting of Southdean and its visibility from Buckingham Road, particularly as a single storey dwelling was being replaced with a much larger building. He agreed that the landscaping along the boundary in the front setback area should have a raised canopy to screen the upper levels of the building and increase the visibility of Southdean.

82 Mr Dighnam also considered that the façade treatment of Building A could be improved by the use of colours and materials to provide more detail and improve its relationship with Southdean. He acknowledged that a building on the site would necessarily be contemporary and different in its form. Further, he accepted that the changes to the façade (exhibit F) proposed by Ms Jelicic were an improvement but were not adequate to address his concerns about the building’s relationship with Southdean. He preferred the façade changes proposed by Mr Israel.

83 In Mr Israel’s opinion, it is inevitable that a residential flat building will be different in style and character to a single dwelling and that there will be “conflict”. He considered the new building should provide a transition between the proposed residential flat building at 2-6 Buckingham Road and Southdean and in his opinion this was achieved. He initially had concerns about the materials and colours of the front façade but accepted that these had been adequately addressed by the proposed amendments even though they were different to what he suggested.

84 Mr Israel considered that the front setback of Building A was adequate. In his opinion the relationship of Southdean and its entrance driveway to the Pacific Highway were already lost and the demolition of the existing house would increase its visibility from Buckingham Road. In his opinion a further setback would provide a relatively minimal increase in the visibility of Southdean from the public realm. He considered the objectives of the front setback control in DCP 55 were met, particularly if the landscaping permitted views of the house.

85 Both Mr Dighnam and Mr Israel agreed that upper levels of the building and the above ground basement car park should be screened to reduce the impact of the proposal on the setting of Southdean. Although they held different opinions on the extent to which the basement car park and upper levels of Building A and B would encroach into the view corridor of the living rooms and main verandah of Southdean and its historic relationship with the golf course, particularly the club house and the first tee.

Findings

86 Clause 25C(1) of the KPSO relevantly includes the aim:

(a) to encourage the protection and enhancement of the environmental and heritage qualities of Ku-ring-gai,

87 Clause 25C(2) includes the objective:

(e) to ensure that development for the purpose of residential flat buildings on land within Zone No 2 (d3) has regard to its impact on any heritage items in the vicinity of that development,

88 Clause 25D(1) of the KPSO includes the requirement that requires

(b) if the application is for consent for a residential flat building in Zone No 2 (d3), a statement describing the extent, if any, to which carrying out the proposed development would affect the heritage significance of any heritage item in the vicinity of the subject land.

89 Part 3.5 of DCP 55 includes objectives and controls for development in the vicinity of a heritage item. These include objectives:

O-1 New medium density development that respects the heritage significance of the adjoining or nearby heritage items.
O-2 New medium density that does not visually dominate a heritage item.
O-3 New medium density that does not reduce the views from or to an item from the public realm.
O-4 New medium density that does not impact on the garden setting of an item, particularly in terms of overshadowing the garden or causing physical impacts on important trees.

C-1 Medium density development adjacent to a heritage item shall:
i. Setback the first and second storeys at least 10 metres from the adjacent heritage building.
ii. Setback the third and fourth storeys at least 15 metres from the adjacent heritage building.
iii. Be setback from the front boundary so that it is not closer than the adjoining heritage building.
C-2 Screen planting on all boundaries with an item to achieve a height of at least 4 metres.
C-3 New development shall respect the aesthetic character of the item and not dominate it.

90 A Heritage Impact Statement (HIS) and Supplementary HIS were prepared by Mr Israel. Mr Dighnam did not consider that these had adequately addressed the impact of the proposal on the heritage significance of Southdean. His key concern being that the proposal will dominate Southdean, particularly as a result of its setback to Buckingham Road.

91 Building A is setback 10m from Buckingham Road and Southdean, at its closest point, has an 18.5m setback. The proposal therefore does not comply with C-1iii of Part 3.5. However, we accept Mr Israel’s evidence that the proposal will meet the objectives of this control.

92 The orientation and setback of Southdean is unusual in the street. Southdean is setback at its closest point about 18.5m and at an angle to Buckingham Road with its main elevation orientated to the Pacific Highway from which its original driveway provided access. This historical association has largely been lost by subsequent subdivision of the area and the dwelling at 8 Buckingham Road and its landscaping now block views of Southdean from the public realm. The proposal will not reduce the views that are currently available to the house and a further setback will not recreate the historic relationship that has been lost. The setback of the proposal therefore meets objective O-3 of Part 3.5 and is acceptable.

93 We note Mr Dighnam’s concerns about the materials and colours of Building A but we accept Mr Israel’s evidence that the building is a residential flat building which is of considerably different height and scale to Southdean and there is an inherent conflict between the two buildings. Changes to the materials and colours may improve their relationship but, of themselves, would not resolve this conflict.

94 The setbacks of the upper levels of Building A comply with the setback requirements in C-1 i and ii of Part 3.5 and the height of the landscaping will achieve at least 4m as required by C-2 of Part 3.5. Despite this, we are not satisfied that the proposal will not visually dominate the heritage item, particularly when viewed from the living areas and verandah of Southdean. Historically these areas were orientated towards the golf course, particularly its club house and first tee. As with the association with the Pacific Highway, the relationship with the golf course has largely been lost and cannot be regained. However, the angle of Southdean and its orientation to the Pacific Highway and the Golf Course result in its outlook being towards the proposal. It is not the usual side boundary relationship that would result from a more regular subdivision.

95 For the reasons we have discussed above in relation to the side setbacks and the basement we have found that the proposed landscaping will not effectively screen the development such that it will not adversely affect the heritage significance of the item and its setting. The proposal therefore does not meet the aims and objectives in cl 25C (1) and (2) or Part 3.5 of DCP 55 to such an extent that it would warrant approval.

Other issues

96 The other issues raised by the council and the residents would of themselves not warrant refusal of the application. We note that the experts agreed that the overshadowing of the window to 10A Buckingham Road results from a complying part of the building and is a consequence of the effected window being setback less than 900m from the boundary. Further the property is orientated towards the golf course rather than towards the development and the setback of Building B, which adjoins 10 Buckingham Road is 9m which exceeds the requirement and provides adequate space for landscaping.

97 The concerns of the golf course about overshadowing of the turf of the bowling green would be mitigated to some degree by the amendments to the landscape plan to provide deciduous open canopy trees along the southern boundary of the site. However, Ms Munn and Ms Bautovich were concerned about the bulk of the building when viewed from the bowling green, which will be exacerbated by the provision of deciduous trees. We share these experts concerns about the bulk of the Building B when viewed from the bowling green but note that its bulk is consistent with what is envisaged by the planning controls. There is an inherent conflict between the need to screen the building and limit overshadowing but the users of the bowling green have indicated a preference to protect solar access rather than to screen the bulk of the building when viewed from their property.

98 Council did not raise the traffic issues raised by the residents. In the absence of any expert evidence to the contrary, we accept the traffic generated by the proposal will not adversely impact on the existing road system or the availability of on street parking in Buckingham Road.

99 The orders of the Court are:

1. The appeal is dismissed.

2. The development application for a residential flat building at 6A-8 Buckingham Road, Killara, is refused.

3. The exhibits, except exhibit 2, are returned.

___________________

Annelise Tuor
Commissioner of the Court

___________________

Susan Dixon
Commissioner of the Court

07/05/2010 - Earlier costs judgement replaced. - Paragraph(s) 1 -99