IPM P/L v Ku-ring-gai C

[2005] NSWLEC 573

Land and Environment Court

of New South Wales

CITATION:

IPM P/L v Ku-ring-gai C [2005] NSWLEC 573

PARTIES:

APPLICANT
IPM Pty Limited

RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):

10418 of 2005

CORAM:

Hoffman C

KEY ISSUES:

Development Consent :- Refusal of 2 buildings - 5 storey high - residential flats of 42 apartments and basement carpark - streetscape - landscape proposed - neighboring retaining wall and drainage - tree and wildlife conservation - vibration damage from excavation - higher density zoning impacts on heritage items - construction traffic impacts on locality - solar access to proposed units - expenditure of s 94 plan contributions - shadows.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Ku-ring-gai Local Environmental Plan 194
Ku-ring-gai Development Control Plan 55
State Environmental Planning Policy 65

DATES OF HEARING:

02/08/2005 and 21/09/2005

 
DATE OF JUDGMENT: 

09/28/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr C. Shaw, solicitor
of Shaw Reynolds Lawyers

RESPONDENT
Mr B. Tobin and Mr R. Graham, solicitors
of Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

28 September 2005

10418 of 2005 IPM Pty Limited v Ku-ring-gai Council

JUDGMENT

1 This is a Class 1 appeal 10418 of 2005 between I.P.M. Pty Limited and Ku-ring-gai Council in regard to refusal of consent for 2 buildings, 5 storey high, comprising residential flats of 42 apartments with basement parking for 81 cars and 14 bicycles at No. 11-19 Moree Street Gordon.

2 At the first day of the hearing on 2 August, the respondent advised changes to the proposals meant the issues had been resolved to the respondent’s satisfaction. There were several objectors present who wished to give their evidence. They were heard on-site and their properties visited. Returning to the Court, plans, documents and statutes were tendered and submissions given but the applicant had concerns about draft conditions. Directions were given for the parties to forward draft conditions after negotiation but if agreement could not be reached to seek a further hearing date.

3 A further hearing was needed and occurred on 21 September, wherein the only continuing disagreement was conditions 97 and 98 in exhibit 7. They related to bonds sought by the respondent to ensure execution of landscape works and protection of existing trees. The respondent pressed the conditions on that basis. The applicant submitted that there were ample conditions in exhibit 7 requiring performance of those works and the bonds should be deleted having regard to a recently published Court planning principle that there is no power to impose them.

4 The applicant also submitted that the s 94 plan contribution condition may be challenged on the basis of its calculation. When asked to state it’s evidence and/or submissions on that matter the applicant did not therefore I do not propose to review those relevant conditions.

5 The site is about 3700 sq m in area and is approximately rectangular with 61 m street frontage and varying depth of 48 to 63 m. It is 150 m downhill from the Pacific Highway at the Gordon shopping centre. The site slopes down from Moree Street about 8 m to the rear.

6 Prior to the Council being satisfied by the amendments to the plans as in exhibit F the issues had been:

(1) The location of the proposed driveway within the western side boundary setback means the development fails to provide sufficient area of deep soil landscaping to ensure the establishment of large canopy trees and landscape screening to the adjoining properties and Moree Street.

Particulars.
(a) Cl 4.1 Development Control Plan 55;
(b) A side setback of 2.6 m has been provided to the western boundary for the driveway and this limits the potential for deep soil landscaping and tall tree canopy planting as required by Local Environmental Plan 194 and Development Control Plan 55;
(c) The location of the proposed driveway and the provision of insufficient area for deep soil landscaping has an unreasonable impact on the adjoining townhouses to the west at No.’s 21-27 Moree Street.
(2) Insufficient information has been submitted in relation to the design of the development with regard to the Urban Conservation Area 15, West Gordon.

Particulars.
(a) S 3.4 Development within an Urban Conservation Area and appendix B of Development Control Plan 55.

(3) The front setback - use and design of the front setback and design of the apartment building front elevation results in undue imposition of built form in terms of height and bulk upon the streetscape and adjoining properties.

Particulars.

(a) A front setback of ten metres has been provided to Moree Street. This limits the potential for deep soil landscaping and tall tree canopy as required by Local Environmental Plan 194 and Development Control Plan 55 and as a consequence adverse impact on the Moree Street streetscape;
(b) The limited front setback to Moree Street includes courtyards with a minimum setback of 6.2 m as opposed to a required 8 m. This will not allow for acceptable deep soil landscaping and sufficient tall tree canopy within the front setback and as a consequence adverse impact on the Moree Street streetscape.

(4) The location of the proposed driveway within the western side boundary setback fails to provide sufficient deep soil landscaping to ensure the provision of privacy and amenity to the adjoining properties.

(5) Whether the development is in the public interest.


Particulars.

(a) Matters raised by the objectors. Because there were a number of written objections in the evidence, the principle concerns of all of them was encapsulated in those of two who gave evidence on site. They were Mrs N Finkelder of Unit 8 at No. 5-9 Moree Street, Gordon and Miss S Young of No. 33 Moree Street, Gordon.

7 The applicant’s evidence was heard from:

• Mr A J Minto consultant town planner,
• Mr D Turner architect for the proposal.

8 Mrs Finkelder had her townhouse in a development uphill on the eastern boundary of the proposal. Her complex is two-storey townhouses above a semi-basement carpark. Her private courtyard adjoins the subject property approximately opposite the stair shaft and lift well of the eastern building of the proposal. The proposal is setback 9 m to the balconies on the eastern side. Mrs Finkelder’s townhouse has a 5 m setback giving 14 m total separation between buildings. Mrs Finkelder said given the distance of separation and her own boundary vegetation she had no concern about privacy matters for her unit.

9 Due to the slope of the hill Mrs Finkelder’s courtyard and those of the other townhouses facing the proposal have a log retaining wall about 1.5 m high on the boundary so that the courtyards are filled up to be level with the ground floor of the townhouses. The log retaining wall is stable at the moment but since the apartments are probably 15 years old, the logs were seen to be deteriorating. Mrs Finkelder said the applicant should re-build the retaining walls in masonry and move it out to the common boundary. She thought the retaining wall had originally been built with a dogleg away from the common boundary to accommodate trees up at the street.

10 The applicant showed by survey the retaining wall is actually not on the boundary it is inside Nos. 5-9 and therefore is not a joint responsibility of neighbours. The reasons for it being there are not relevant to this proposal. The applicant said it was happy to grant access to Nos. 5-9 to re-build the retaining wall provided it did not interfere with construction on Nos. 11-19. Access from the applicant’s land would certainly reduce the cost and complication of re-building the retaining walls and save existing boundary vegetation within Nos. 5-9.

11 The applicant did not propose any change of ground levels along the common boundary with Nos. 5-9. Due to the level differences up to the courtyard level the applicant sought to put in a 2.8 m lapped and capped fence that would hide the retaining wall and ensure privacy in the courtyards from any persons on the ground level communal open space on the subject site.

12 Mrs Finkelder was also concerned about the common open space at Nos. 5-9. It was a lawn and boundary vegetation area on the north side of her townhouse in the north-west corner of Nos. 5-9. It doubled as a stormwater detention area. The applicant explained there is a natural water course running downhill along the rear boundaries of nearly all the properties on that side of Moree Street. Numbers 5-9 detention area discharged into it and so would the proposal from its own detention system. There would be no interference with Nos. 5-9.

13 Also the area at the rear along the water course is heavily treed and is a haven for possums and bird life. Mrs Finkelder is concerned about impacts upon it.

14 The council had required retention of the bush at the rear of the property and the applicant had set back the buildings 6 m to 9.6 m variable to retain them and the creek line. The council control is 6 m minimum.

15 Mrs Finkelder was also concerned about damage in vibration during excavation of the basement carpark. The applicant accepted council’s condition to adopt appropriate engineering to minimise vibration and damage and to repair any that occurred.

16 I concluded that all of Mrs Finkelder’s reasonable concerns had been properly addressed.

17 Miss Young’s house is a heritage item. She is located downhill of the proposal separated from it by another townhouse style development on No. 21-27 Moree Street and two other houses.

18 The zoning is complex around the site. Numbers 5-9 are zoned Residential 2C. Uphill of Nos. 5-9 is the Gordon shopping centre. The eastern neighbour of Nos. 5-9 is the 3 to 6 storey carparking and shopping centre buildings all zoned for Business/Retail. Number 11-19, the subject site is zoned Residential 2D(3); No.’s 21-27 is zoned Residential 2C; the next two houses No. 29 and 31 are Residential 2D(3) and then Miss Young’s house is zoned Residential 2C.

19 On the opposite side of Moree Street facing all these developments are houses and it is noticeable that the land rises on that side of the street so the houses have a dominance over the bigger townhouse buildings on the low side of the street.

20 Miss Young’s concern was, in summary, the impact of the five-storey buildings on the existing streetscape and the land next to her being zoned residential 2D(3), that zone being the same as the subject site allows five-storey buildings. Miss Young is concerned about the potential impacts of another five-storey development on her amenity and privacy and solar access as well as the impact on her heritage item house.

21 The locality is in the West Gordon Urban Conservation Area No. 15 which is generally on the west of the Pacific Highway and runs southwards about 7 city blocks from the next street north of the subject site. A conservation area is declared under the Ku-ring-gai Development Control Plan 55. The area is noted for its single storey 1920 and 1930s period bungalows in garden settings giving a very consistent character including the almost universal use of face brick.

22 Miss Young said on her reading of DCP 55 a Heritage Impact Assessment is required to show no compromise of the integrity of heritage items in the vicinity and no compromise of the integrity of the Urban Conservation Area.

23 Also, on shadows, she thought the shadow diagrams did not show the true shadows given the sloping nature of the site. DCP 55 also required driveways not to dominate the street frontage. She noted the width of the driveway of the proposal and that it occupied the western downhill side setback thus minimising landscape buffer to townhouses at No.’s 21-27 and restricting the potential for a landscape softening of the apartment building in the streetscape. Also she thought the landscaping was inadequate and the built form would dominate.

24 Ms Young also said the orientation of the two apartment buildings did not favour northern sun access to living rooms as sought by State Environmental Planning Policy 65.

25 Construction traffic is another concern and she hoped all heavy vehicles must enter and exit using the Pacific Highway and not come down the hill through the detached house areas. Also that cleaning of trucks leaving the site would be assured in order to avoid siltation of the street storm waters.

26 The s 94 contribution fund Ms Young thought should be spent on Moree Street and environs with landscaping, park enhancement and bike paths to local schools. In regard to the s 94 contribution funds the respondent and the applicant observed those are calculated on the cost of specific works laid down in the Council’s plan. So where the money is spent is beyond the applicant’s control. Miss Young needed to take that up with the councillors but with the contributions being based on a committed s 94 plan, it designated where the funds could be spent.

27 Construction traffic is subject of a condition to prevent saltation leaving the site and a Traffic Management Plan to be approved by council’s development engineer.

28 In regard to landscaping, in the amended drawings, 50% of the site is open space and landscape works for deep soil planting. This complies with council’s requirements on numeric controls and statutes, however changes had been made to improve the development in several other ways;

(a) The driveway had been narrowed to provide a wide deep soil vegetation area all the way from the street to the car park entry on the west side of the downhill apartment building,

(b) This gave an acceptable vegetative buffer to No.’s 21-27 and also enabled trees to be grown up at the street boundary clear of any overhead power lines to soften the apartment building in the streetscape,

(c) The carpark entry being on the west side of the down hill apartment meant the large doorway was not visible from the street and the drive descending from the footpath level meant it was only visible to pedestrians standing at the driveway so it did not dominate the streetscape as required by the controls,

(d) The townhouses at No. 21-27 had no side windows to be disturbed by car movements and the drive was in cut for most of its length and that further reduced car noise to neighbours.

29 In regard to landscaping the only other matter that had initially concerned the council was the use of part of the front setback for courtyards to ground floor units. The council is now satisfied with the design. The front setback is 10 m which matched the townhouses on either side.

30 The 9 m side setbacks to the east and west boundaries and the 12 m separation between the two apartment buildings with tall trees to be planted in the side setbacks and the central communal open space would reduce the apparent bulk of the buildings in the streetscape.

31 The front setback was also to be heavily vegetated for the first 7.5 m including tall trees, then 2.5 m from the building the landscaped setback would become part of the ground floor courtyards to units. The courtyards included paved terraces under the overhang of the first floor giving courtyards of 8 m by 5 m adjoining the living rooms of the ground floor units at the street front. Units at the rear of the site had much larger courtyards. The courtyards would have ample privacy from the street and would not be obvious to passers-by. There was to be no front fence so the proposal would add considerably to the leafy treed character, that is perhaps the major element in the streetscape.

32 The slope of the site down from the street also meant that the ground floor would be about one storey below street level giving the impression of a four-storey building not five. The fifth floor is set in from the lower floors giving a lighter visual appearance to the top of the building instead of carrying the masonry external walls up to the roof. This could be seen in the coloured perspective of the proposal on the drawing cover sheet in exhibit F which were the final amended plans. The perspective showed the proposal with pale coloured walls and slate coloured roof fascia and window frames. The Court was told the colour scheme had changed as in exhibit G which showed much more variation in colours and materials including a sandstone base course up to half the height of the ground floor, alternating colours above that in fawns accentuated by burgundy columns. The top floor is to be in greys with a silver roof fascia. Mr Minto said this would accentuate the articulations in the building facades and further reduce its visual bulk.

33 In regard to the zonings he noted that the 2C zone of the neighbouring townhouses only allowed up to a density of dual occupancy developments so those townhouses must have been approved prior to the current zoning. The much larger commercial buildings just uphill must have had an influence in creating the 2D(3) zone of the subject site and the same zone extended over the properties at its rear and further downhill permitting five-storey development. The houses on the opposite side of Moree Street were in Zone 2C also, that only allowed them for dual occupancy so Mr Minto did not expect that side of the street to alter. However the mix of zonings around the subject site meant there is a clear intention under the Ku-ring-gai Local Environmental Plan 194 to not adhere in this locality to the Development Control Plan 55 character of consistent 1920 to 1930s single-storey bungalows in the West Gordon Conservation Area.

34 The proposal was located up in the north-east corner of the DCP 55 conservation area next to the large commercial buildings of the shopping centre so it could be regarded as a transitional locality that did not affect the majority of the Urban Conservation Area. Mr Minto noted the development control plan had a different definition for conservation areas compared to the Ku-ring-gai Local Environmental Plan 194 and therefore there was more flexibility in DCP 55. It’s conservation areas had been defined by National Trust study. Mr Minto said the existing buildings and statutory zonings of this upper part of Moree Street posed to him the question of how there could be any justification for it to be included in the National Trust Urban Conservation area when it is not consistent with the stated character.

35 The Development Control Plan did have regard to State Environmental Planning Policy 65 provisions for design excellence of new residential flats. The proposal had been tested for compliance with new BASIX regulations for environmental sustainability and achieved 41% improvement on water usage when BASIX set 40%, it achieved 31% on energy usage when BASIX set 25% and it passed on thermal comfort tests. In addition the natHERS energy rating had achieved 4.5 stars for 66% of all the apartments and the rest are at or above the minimum 3.5 stars.

36 Miss Young had said the building should have been oriented so living rooms faced north to achieve the best solar access. It is true, that would have achieved even better results, however it would have been contrary to the development control plan requirement cl 3.4(C6) requiring that new buildings not be oriented across sites contrary to the established building pattern. The two apartment buildings proposed running downhill away from the street instead of parallel to it was a better streetscape solution. The fact that the proposal could exceed the BASIX targets with that orientation spoke in its favour.

37 I am a little concerned that cl 3.4(C4) required that designs of new proposals respect the complexity of predominant roof shapes of the Urban Conservation Area with complex hips and gables reflective of the Federation and Californian bungalow era. The proposal did not have this feature however the Council did not press this point due to the proximity of the site to the rectilinear bulky masses of the shopping centre buildings and Mr Minto’s evidence on the character of this upper end of Moree Street near the Pacific Highway not fitting the DCP 55 Conservation Area description for West Gordon.

38 In regard to shadows the parties agreed the diagrams did include the slope of the hill. The council assessment is that the 9 m side setbacks mean the proposal minimises overshadowing on its neighbours in accordance with DCP 55. It allows at least 3 hours of sunlight between 9am and 3pm mid-winter to the living rooms and outdoor private open spaces of adjoining dwellings. Although the townhouses downhill of the site are shadowed at 9am, the shadow retreats progressively until no part of them is shaded at noon. Due to the townhouses uphill being higher there is less impact on them. In the afternoon they do not begin to receive shade from 2pm onwards. At other times of the year the impacts are less on both neighbours.

39 In considering Miss Young’s other concern about impact on her heritage item dwelling, the provisions of the statute and controls do not require a heritage impact statement for her house or the conservation area for this development. They do require consideration of the relevant aspects. It seems to me the Young house is so far separated from the subject site it is not in the vicinity such that there would be impact. In the event a building is proposed in the 2D(3) zone beside Miss Young’s house specific controls and statutes would come into force and require particular consideration of the heritage item. The council has not raised any issue in the end on this matter, cl 3.4 of DCP 55 which was previously raised has been dealt with by Mr Minto’s evidence.

40 In regard to the draft conditions I agree that conditions 97 and 98 should be deleted as there are specific performance conditions to require protection of existing trees and the installation and maintenance of the landscaping.

41 Overall therefore I find nothing sufficient for refusal of the proposal therefore the orders of the Court are:

1. Appeal is upheld.
2. Development consent is granted for two 5-storey apartment buildings with basement carpark at Nos. 11-19 Moree Street, West Gordon, in accordance with the plans in Exhibit F being Drawing Nos. 1168 LP/01 C, /02A, -03B, -04A by John Loch and Associates Landscape Architect and Drawing Nos. 2916 DA-02D, -03C, -11C, - 12C, -13B, -14, -21, -22B, -31, -41, -42, -43 by Nettleton Tribe Architects and Drawing No.'s J1407-SW1 C, SW2C, SW3B by Bewsher Consulting Engineers and the revised colour finishes in Exhibit G all as further amended by and built in accordance with the conditions in Annexure A hereto.
3. The exhibits are returned to the parties except Exhibits A, B, C, D, F, G and 4, 5 and 7.
4. No orders as to costs.

___________________

K G Hoffman
Commissioner of the Court
ljr