Griffin And Anor v Ku-ring-gai Council

[2007] NSWLEC 319

Land and Environment Court

of New South Wales

CITATION:

Griffin And Anor v Ku-ring-gai Council [2007] NSWLEC 319

PARTIES:

APPLICANT
Patrick Griffin and Katherine Mulcahy

RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):

11178 of 2006

CORAM:

Hoffman C

KEY ISSUES:

Development Application :- subdivision below minimum lot size, setbacks, private open space, tree preservation, landscape, streetscape, character of locality

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Ku-ring-gai Planning Scheme Ordinance
State Environmental Planning Policy No 1

DATES OF HEARING:

15/05/2007 and 16/05/2007

EX TEMPORE JUDGMENT DATE:

16 May 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr Clay, barrister

RESPONDENT
Mr Hudson, solicitor
of Wilshire Webb Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

K G Hoffman

16 May 2007

11178 of 2006 Patrick Griffin And Anor v Ku-ring-gai Council

JUDGMENT

1 This is a Class 1 Appeal No 11178 of 2006 between Patrick Griffen, Katherine Mulcahy and Ku-ring-gai Council in regard to the refusal of a subdivision application at No’s 19 and 21 Duff Street, Turramurra.

2 The hearing was listed for a view on site, evidence from the objectors on site, then returning to Court. The parties agreed that the hearing could best be done by hearing all evidence on site, and I allowed that proposal. The two lots each have an existing house up at the Duff Street frontage.

3 Duff Street appears to run down a slope, along the top of a topographic spur line from the Pacific Highway, and allotments either side slope down into gullies. Subject lots are rectangular and slope down from Duff Street, about 14 m vertical to Holme Street. The side boundaries are about 67 m long. Each existing lot is 13.4 m wide giving an area of 890 sq m, each totalling 1780 sq m.

4 The proposal is to subdivide off the bottom area of the two lots to create one more lot. The two new Duff Street lots would then be 44 m deep, having each an area of 590 sq m. The new Holmes Street lot would be almost square, being 26.82 m wide by 22.37 m deep, giving an area of 600 sq m.

5 On the Holmes Street frontage, the street boundary is about 20 m long. This is because Holmes Street dead-ends with Denman Street, outside the property forming an L shape corner. As a result, part of the Holmes Street boundary of the proposal overlaps the side boundary of lot 3 DP20942 Denman Street. The overlap is about 6.8 m.

6 The house on Lot 3 has a big front set back uphill from the street and approximately level with the back fence of No 15 Duff Street. The new third lot of the proposal contains most of the large mature trees of the Blue Gum High Forest community. Retaining walls have been built previously on No’s 19 and 21 Duff Street just above the proposed boundary between them and the new third lot. Easements are proposed from No’s 19 and 21 along the north-eastern and south-west side boundaries to carry stormwater down to Holmes Street.

7 During the hearing it was discovered sewer lines from No’s 19 and 21 also traverse the new third lot and required diversion around the new house footprint. The footprint is intended in order to minimise tree loss on the third lot. The sewer lines require easements also.

8 The applicant proposed the house footprint be tailored to minimise interference with tree roots and danger from branch drop and be subject to a restriction on title so that any potential purchaser would be aware of the constraints on the site prior to acquisition.

9 A further proposal is to limit the area of the house footprint on the new third lot and on the existing houses at No’s 19 and 21, to have the maximum site cover of 40 % on each of the three new lots by restriction on title. The respondent did not object to those amendments. This necessitated amended drawings and amended conditions to be provided to the Court forthwith and that direction was given.

10 The amendments being the subject of description, evidence and submissions in front of all present, I did not consider necessary the re-notification of the changes or adjournment of the hearing. The changes are such that they could be made by a condition of any consent and the drawings simply clarify that.

11 At the hearing for the respondent, were:

• Mr Hudson, solicitor,
• Ms R Askew, landscape assessment officer,
• Mr Selwyn Segall, team leader, assessment Ku-ring-gai Council,
• Ms R Pearson, executive planner,
• Ms K Allen, solicitor,
• Ms R Lewing development assessment officer from Ku-ring-gai Council and
• Ms D Abeyrahne, development assessment officer, Ku-ring-gai Council.

12 Objectors giving evidence were:

• Mr N Westlake and
• Mrs J Westlake of number 1 Allan Street, Turramurra. This property adjoined the proposed new allotment at the foot of the subject property, having its major boundary to Holmes Street and its narrow frontage to Allan Avenue.

13 Appearing for the applicant was:

• Mr Clay, barrister,
• Ms E Griffin, student,
• Mr P Griffin, engineer and applicant,
• Ms K Mulcahy, applicant, and
• Mr N Jeradowitch, consultant town planner,
• Mr English, consultant arborist.

14 The parties had agreed on a joint planning expert that they asked the Court to appoint. Ms D Laidlaw, town planner, had prepared a report in Exhibit 2 and appeared to give evidence.

15 The issues are:

1 The proposed subdivision of two lots into three would result in allotments which are approximately 30 % below the minimum allotment sizes and not in keeping with the general pattern of subdivision in the area.

Particulars. Clauses 25H(1) and (3), and the minimum lots sizes on the dwelling house subdivisions map of the Ku-ring-gai Planning Scheme Ordinance . Clauses 25D(1)(a) and (b) and (2) of schedule 9 of the Ku-ring-gai Planning Scheme Ordnance .

2 The State Environmental Planning Policy No 1 objection does not establish that compliance with the development standard is unreasonable and unnecessary.

Particulars. Clause 25H(1) and (3) of the minimum lot sizes on the dwelling house subdivisions map in the Ku-ring-gai Planning Scheme Ordinance .

3 The nominated building platform for proposed Lot 12 will result in:
(a) A dwelling which will have adverse amenity impacts on surrounding allotments,

(b) Effective landscaping between developments not being achieved,

(c) An undersized dwelling for the area, and

(d) Development not compatible with the existing landscape quality of the area.

16 In considering the evidence I note that the parties withdrew and did not tender town planning reports by Mr Jeradowitch for the applicant and Ms Pearson for the council, leaving the report of Ms Laidlaw as the sole town planning evidence. Overall, for the reasons I will outline, she favoured the use of State Environmental Planning Policy No 1 to permit the subdivision.

17 The principal contrary views put orally by Ms Pearson and Ms Askew on site are that the primary objectives of cl 25H(1) in the Ku-ring-gai Planning Scheme Ordinance for subdivision in the residential zones are

(a) To set minimum lot areas that reflect previous minimum lot sizes,
(b) To set minimum lot areas and minimum street frontage lot widths that provide for development to occur in a garden setting by substantial setbacks to enable long term sustainability of trees,
(c) To permit the subdivision of multi unit housing, and
(d) To provide for substantial common landscaped areas to encourage good streetscape quality and areas for trees for each development.

18 In regard to (a) the words “previous minimum lot sizes” is not defined and presumably comes from research in an unnamed report that gave rise to setting the 929 sq m minimum lot size in the 2C(2) zone and the minimum frontage to the street of 18 m. In determining any relevance of Objective A to those standards I find it quite unhelpful.

19 Objective B makes more sense in that Ku-ring-gai’s leafy character and the dominance of very large mature trees, such as found on the subject property, has been possible due to large lots with room for large trees to grow clear of the houses. The aerial photo in Exhibit 7 shows dominant tree canopy, but most houses are clear of any overhanging canopy which avoids branch drop problems and to some extent minimises leaf litter in gutters and consequent to that, lowers the bushfire potential problems.

20 I note in Exhibit 1 the Rural Fire Service has advised it would issue a bushfire safety authority under s 100(b) of the Rural Fires Act, subject to ember attack screens being placed over all openings of the existing and any future houses, roofing to be gutter-less and roof valleys to be screened to prevent leaf build-up. Also the three lots are to be managed as inner asset protection areas as in s 4.2.2(b) of the Bushfire Protection 2001.

21 The respondent did not raise bushfire as an issue and I do not raise it. In any case, the applicant tendered in Exhibit E a bushfire assessment by expert Mr G Swain, consultant. He was not called for cross-examination and his report claims that the vegetation on site and in the surroundings is not bushfire prone, as it does not have any of the vegetation classifications contained in Bushfire Protection 2001. He believes s 100(b) of the Bushfires Act should not apply to the site and in fact council’s bushfire prone land map is wrong in this locality and should be corrected.

22 As a result of this, Mr English, the applicant’s arborist, prepared two reports in Exhibits F and G to retain about 20 trees on site as he found only five that needed removal. Two of the five have bifurcated trunks. One has severe fungal attack, another is heavily storm-damaged and has hazardous regrowth. Another is within the footprint of the proposed new house on the third lot, and the fifth has obviously moved in the ground due to previous root damage.

23 The trees are very tall forest specimens and being close together have relatively small diameter canopies. Only one tree, No 14, in the survey in Mr English’s report, has a wide canopy. The house footprint was agreed during the hearing to be moved another metre away to give 7 m clearance from the trunk to minimise branch drop damage. The house footprint is configured to avoid the roots of all trees to be retained and to minimise branch drop danger for any future dwelling.

24 Mr English said his proposal retained many more trees than the council sought in its draft conditions of any consent, and he preferred to retain trees to avoid unnecessary exposure to storm damage caused by thinning out. He also recommended tree management by pruning dead branches, et cetera, to minimise danger of branch drop in yard areas. This would require extra conditions to preserve trees 1, 3, 10 and 12, in addition to trees 4, 5, 6, 7 and 14 and to manage them. The applicant submitted draft conditions thereto.

25 In regard to the Ku-ring-gai Planning Scheme Ordinance cl 25H objectives(1)(b) and (d), Mr Jeradowitch said the proposed house footprint provided a single storey garage set 7 m back from the street boundary to Holmes Street, and that exceeded the setback of No 1 Allan Street, the only immediately adjoining house. On top of the garage would be a north facing deck of about 100 sq m area to comply with the council’s private open space requirement. The main house would be set back towards the rear of the garage 12 m to 14 m variable from the front boundary, with the living room having direct access onto the garage deck.

26 Also off the deck to the north in the corner of the proposed third lot that adjoined the front setback of Lot 3 DP201942 Denman Street, would be a ground level yard area about 12 m by 8 m relatively free of trees. Its northern orientation being relatively free of overhanging tree canopy, and the proximity of the adjoining living area, made it an appropriate yard space. It could be screened by unobtrusive fencing along the proposed driveway and the side boundary of Lot 3 to give privacy. Ms Laidlaw agreed with this.

27 The remainder of the Holmes Street frontage of the proposed third lot could have no fence or a low fence so that the front garden landscape that rises up from Holmes Street would provide an excellent streetscape termination to Denman Street, where it dead-ended at the corner with Holmes Street.

28 Combined with the tall trees to be kept in the front set-back and supplementary Blue Gum High Forest understorey to be planted, the leafy character, wide street frontages, and landscaped settings of Ku-ring-gai sought under cl 25H of the Ku-ring-gai Planning Scheme Ordinance would be achieved. The fixing of the future house footprint and its limitation and the existing two houses limitation to 40 % of the site area, by restriction on title, would ensure that outcome, he said. Ms Laidlaw agreed with this.

29 Also the fall in level from No’s 19 and 21 down to the lower part of the subdivision meant the existing houses would retain their outlook to the north into the forest canopy and so retain the desired leafy character of Ku-ring-gai for those houses. The privacy of any new house on the third lot would be protected by the horizontal distance in excess of 20 m between them and the footprint, and the vertical separation of about 7 m. Ms Laidlaw agreed with this.

30 The rear setback of the proposed footprint would not meet council’s rear setback requirement, but that is appropriate in this case, he said, as it would be a south facing area with the retaining walls of No 19 and 21 uphill and unattractive. The large areas of northern yard spaces of the proposed third lot would be the ones used. Ms Laidlaw agreed with this.

31 In regard to the Ku-ring-gai Planning Scheme Ordinance cl 25H(1)(c) the parties agreed it did not apply in this application.

32 The only objectors, Mr and Mrs Westlake of No 1 Allan Avenue, said their only objection is to the loss of the mature trees in Ku-ring-gai that is slowly eroding its character and this development application is typical of the reason for that loss, they said.

33 Ms Askew said that the primary reason for the large minimum lot area requirement of 929 sq m and the generous setbacks is to give space for large trees and buildings to co-exist and for people to have their houses and parts of their yards free of potential branch drop danger.

34 Ms Laidlaw, in taking all these matters into account said:

“Caution should be applied in relying on State Environment Planning Policy No 1 to support a variation in lot size in areas affected by Local Environmental Plans 194 and 200, having regard to the particular planning background of these instruments, which involved detailed investigations and studies resulting in the recent re-zonings.

Notwithstanding this, I believe there are reasons to apply the SEPP1 discretion to permit subdivision in this case, having regard to circumstances that together are unique to this site, most particularly
(A) The presence of 1 Allan Avenue to the north-west, which leaves the rear garden of the subject properties as an isolated rear garden area with a primary street frontage to Holmes Street,

(B) The shape and orientation of 1 Allan Avenue, with which the proposed Lot 12 is complementary and the form of the existing residence on that property which establishes characteristics to which any future development on Lot 12 could reasonably relate to, notwithstanding there may be a non-compliance with front and rear setback controls.

(C) The size and shape of the proposed lot has been determined as appropriate to allow for the erection of a future dwelling house, whilst maintaining an optimum distribution of significant canopy trees on the land.
(D) The topography and pattern of development is such that any development on proposed lot 12 would in fundamental terms have minimal impact on the Duff Street residences,
(E) Likewise, the size and shape of the lot is appropriate to allowing for future development without adverse impact on No 1 Allan Avenue or the properties to the north on Holmes Street and Denman Street.

(F) The subdivision would not in my view offend the objectives of cl 25C, 25D or 25H of the Ku-ring-gai Planning Scheme Ordinance .

(G) The likelihood that in fundamental terms development can be achieved on the site without adverse amenity impacts due to the particular pattern of development that is established, consisting of small lots in the immediate locality and the topographical character of the land.
(H) In terms of draft State Environmental Planning Policy No 1, the site is located in an area that has general suitability for increased density, having regard to proximity to shops and services and development of lot 12 may be seen as a better environmental outcome than maintaining an isolated and underused parcel of land in circumstances where there are particular features of the site that allow for a development without impact on amenity or on the environment.”

35 When on site Ms Laidlaw expanded this expert opinion to say that the proposal would achieve and maintain the objectives of cl 24H of the Ku-ring-gai Planning Scheme Ordinance. In respect of the State Environmental Planning Policy No 1 objection she said the proposal enabled the orderly and economic use of residential land and it would enhance the streetscape of Holmes and Denman Streets. She was not cross-examined on this by either party. I accept her evidence and that of Mr English in respect of retaining more of the existing trees. I note the site is located in a pocket of lots that are under the 929 sq m minimum area and to that extent issues 1 and 2 are in error in implying the 929 sq m is typical in this precinct.

36 The parties forwarded on 16 May the updated plans and conditions as directed by the Court. Condition 9 is in error and must be framed to prevent storage of materials et cetera under the canopy of trees to be retained. Conditions 12, 13, 20, 23, 26 and 35 need adjustment to conform with the evidence. On these matters the parties made submissions and amended documents when the hearing resumed by substituting Exhibits B and 9 and tendering Exhibits J and K.

37 Overall I have formed the opinion that the State Environmental Planning Policy No.1 objection should be upheld in this particular case and therefore the orders of the Court are:

1. The appeal is upheld.

2. The subdivision application at No. 19 and 21 Duff Street, Turramurra to re-subdivide the land into 3 lots is granted as shown on two drawings by Patrick Griffin and Katherine Mulcahy dated 15 May 2007 as annotated in Exhibits B & J of this appeal entitled Approved Subdivision Plan on one drawing and on the other Approved Building Footprint as included in Annexure A hereto with the conditions of consent.

3. The exhibits are returned to the parties except Exhibits A, B, C, H, J, K, 2 and 9.

___________________

K G Hoffman
Commissioner of the Court
Dlc/ljr