Kaldas v Ku-ring-gai Council
[2009] NSWLEC 1121
•17 April 2009
Land and Environment Court
of New South Wales
CITATION: Kaldas v Ku-ring-gai Council [2009] NSWLEC 1121 PARTIES: APPLICANT
RESPONDENT
Kaldas, Nadeem
Ku-ring-gai CouncilFILE NUMBER(S): 10126 & 10127 of 2009 CORAM: Taylor C KEY ISSUES: :- Appeal against modification of a development application; communal open space versus private open space; importance of landscaping and communal space in residential flat buildings LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Ku-ring-gai Planning Scheme Ordnance
Ku-ring-gai Council’s DCP 55 Railway / Pacific Highway Corridor and St Ives CentreCASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167 dated 14 June 2001 TEXTS CITED: Hall, A. 2007. Where have all the gardens gone? An investigation in the disappearance of back yards in the newer Australian suburb. Urban Research Program Research Paper 13, August 2007, Griffiths University, DATES OF HEARING: 17 April 2009 EX TEMPORE JUDGMENT DATE: 17 April 2009 LEGAL REPRESENTATIVES: APPLICANT
Mr Briggs, Solicitor
DG Briggs and AssociatesRESPONDENT
Mr Marincowitz, Solicitor
DLA Phillips Fox
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Taylor C
17 April 2009
10126 & 10127 of 2009 Kaldas, Nadeem v Ku-ring-gai Council
JUDGMENTThis determination was given extemporaneously and it has been edited prior to publication
1 This matter was conducted initially as a s 34 conciliation conference on the 17 April 2009. The purpose of the conciliation conference was to hear the parties and for them to try to reach agreement by consent following the Council’s determination of two matters.
2 These were for a development application for a strata subdivision of a residential flat building (appeal 10126 of 2009, re: Development Application No. 1163/08), and the Council’s determination of an application to modify a development consent (appeal 10127 of 2009, re: an application no. MOD0423/08 – Modification of DA 1334/04). Both of the matters were considered concurrently. At the on-site hearing I was provided with the opportunity to view the residential flat building and the matters in contention.
3 During the course of the conciliation conference the parties reached agreement regarding conditions of consent over a number of matters. These included, in brief, the non-approved retaining wall at the rear of the building and the wall along the front of the building; the nature and size of the fences separating the downstairs units; the use of fences and gates at the central eastern and western edges of the unit building on communal open space; and the need to provide additional private open space for the ground floor unit , number 1, at the north-western end of the building.
4 In regards to the remaining issue under contention, the need to provide screening for unit 12’s private open space at the north-eastern corner of the building, the parties could not reach agreement.
5 The parties agreed to my hearing the remaining matter under contention and to making a binding agreement under s 34 (4)(b) of the Land and Environment Court Act, 1979.
6 The relevant planning controls are to be found in the Ku-ring-gai Planning Scheme Ordnance (KPSO), Division 3, Part 3A and also in Ku-ring-gai Council’s DCP 55.
The Issues and Evidence
7 The Applicant, represented by Mr Briggs, contended that there was a need to provide separation between the communal open space to the rear of the building and the private open space for unit number 12. Mr Briggs contended that what he had proposed at the on site discussions would not be intrusive nor extensive.
8 The request for the amendment to the plans was depicted carefully at the on site hearing by Mr Briggs using twigs and bark strips to demark the following area on the communal open land: a 1.6 m gap between the current plant bed on the eastern wall of the unit to remain as a grassed area, bounded by a 900 mm fence with a 500 mm planted bed on its outer rim. The proposed fence was intended to curve around the northern face of unit 12 so as to provide privacy for the sunroom at the rear this dwelling. The purpose of the 500 mm planter bed was to provide a green buffer to the fence and to soften its appearance. He proposed planting akin to that elsewhere in the surrounding garden beds to provide some form and symmetry to the design.
9 Mr Briggs argued that the remaining area of communal space would provide for sufficient open space. The 900 mm fence would provide a buffer for the residents of the unit when they were using their private open space as well as for users of the communal open space area. In effect, I understood it that Mr Briggs was saying that there would be mutual benefits because its provision would mitigate and reduce any perceptions of intrusion into the private and communal spaces in this area of the site.
10 The Council’s landscape and town planning experts, Mr Geoff Bird and Mr Stuart Ratcliff, respectively, advised Mr Marincowitz who represented the Council. The essence of Mr Marincowitz’s contentions was that the proposal by Mr Briggs would result in an undesirable outcome in regards to the utility of the communal open space adjacent to unit 12.
11 Mr Marincowitz noted that unit 12 had more than ample private open space already at its southern side, which had the potential to be enclosed completely to achieve maximum privacy for any future occupants. In addition, Mr Marincowitz contended the proposal was contrary to cl 3.2 and 3.3 of the Council’s DCP 55, which relate to the desired future character and landscape character of a development. He noted that the design control C-6 requires generous front setbacks and communal open space areas for the establishment of high quality gardens.
12 In regards to landscape design, Mr Marincowitz identified clause C-10 at 4.1 of DCP 55, which states the design controls for private outdoor space for ground floor apartments. C-10 of DCP 55 provides the following design controls:
- change in level and/or;
- screen planting, such as hedges and low shrubs; and/or
- up to 1.2m solid wall with at least 30% transparent component above and gate to common open space.
- Private outdoor space for ground floor apartments is differentiated from common areas by:
13 Mr Marincowitz argued that the current, existing development satisfies the first two of these and that in reality there was no need for further intrusions into the communal open space provided at the subject site. The Council’s main concern related to the fact that the north-eastern corner of the building is the primary communal open space at the development.
14 In addition, Mr Marincowitz contended that because this area receives north-eastern sun and is of an appropriate size, it is a significant location for useable open space for future communal activities by the residents. Mr Marincowitz also acknowledged that unit 12 and its current private open space to the north also benefited significantly from good solar access.
15 It was apparent from the opposing desires of the two parties that there was a tension between the need to provide communal open space at the subject site and the future interests of the occupants of unit 12.
16 Mr Marincowitz emphasized design control C-9 in section 4.5.5 of the DCP, which states:
- Private open space adjoining common space shall not be enclosed with high fences.
17 In making my decision I am obliged to have regard to the relevant objectives as set out in the council’s DCP. I have regard to these objectives in the context of the Court of Appeal’s decision in Zhang v Canterbury City Council [2001] NSWCA 167 dated 14 June 2001, in which it was determined that the provisions of the DCP are to be considered as a fundamental element or a focal point of the decision-making process. The provisions of the DCP are directly pertinent to the application and are entitled to significant weight in my decision-making process but are not in themselves determinative.
18 If the proposal does not meet all of the development control plan requirements I may still grant consent after a proper and genuine consideration of the DCP and having considered all other matters that are relevant under s 79 of the Environmental Planning Assessment Act, if there are reasons to render it acceptable.
Findings
19 I have considered carefully the competing elements of the communal open space requirements as well as those of the future occupiers of unit 12. It is clear as Mr Briggs noted, that there is a need to balance the amenity for unit occupants, while maintaining provision of unhindered solar access and as well as adequate open space. In the Council’s Statement of Facts and Contentions in Reply, the Respondent estimated that of the communal space to be retained at the subject site, only approximately 117 m2 (~ 19 %) of the principle common open space was capable of accommodating recreational activities that will receive solar access as per the DCP 55 control (4.5.1). This control requires that 50 % of the principle common open space receives direct sunlight for at least three hours between 9 am and 3 pm on June 21st.
20 The Applicant had proposed originally the enclosure of the communal areas to the rear of the flat building by the use of dividing fences, which would have the effect of encroaching significantly into the communal open space curtilage around the subject site. However, during the s 34 conciliation phase of the conference, the Applicant and the Respondent came to an agreement to permit only a 1.8 m fence between each of the rear units’ small courtyards with a 300 mm extension into the immediately adjoining communal open space. These structures will allow for an element of privacy while maintaining the communal open space around the subject site.
21 The parties also agreed to some loss of communal open space so as to provide unit 1 with a reasonable area of private open space, given that the terrace area was of a smaller size compared to the other ground floor units. This forfeited area of communal space is of lower quality compared to that at the north-east edge of the subject site because it has a west to north-west aspect and is close to the Pacific Highway. These factors mean the land in this area is subject to significant traffic noise impacts and limited solar access.
22 Professor Hall’s (of Griffith University) 2007 research paper “Where have all the gardens gone? An investigation in the disappearance of back yards in the newer Australian suburb” detailed the shrinking private open space provisions for modern dwellings and the consequent negative social and environmental effects. In regards to the subject site, a multi-dwelling development, open space akin to that provided in single dwellings can only be achieved via the provision of adequate communal open space. Such space allows provision of trees, other planting and grassed surfaces for recreation, which encourage children’s outdoor play, communal gatherings and the like. The provision of sufficient space for appropriate deep soil planting has other broader environmental benefits. Mature trees contribute to improved microclimates around buildings (for example, the provision of natural shading reduces reliance on air conditioning units) and to an area’s total biodiversity and aesthetics.
23 I note that one of the Council’s objections in the Statement of Facts and Contentions in Reply to the enclosure of the communal area for the private benefit of the ground floor occupants was because:
- It is unlikely that future residents will want tall trees (that are required to be planted as per the requirements of the KPSO, DCP55 and the consent) within their individual courtyard area, and as such, the landscape setting will not comply with the desired landscape character as envisaged by the Council. As a result, the integrity of the landscape setting will be compromised and the objectives stated above will not be met.
24 It is clear there is a need to retain sufficient private open space on single dwellings and adequate communal open space on multiple dwellings for recreation use and landscape planting in order to maximise amenity and improve lifestyle. It is the responsibility of consent authorities to uphold the objectives of the DCP for open space where reasonable, especially where open space for communal use is limited and at a premium. Further, the controls in the KPSO and the DCP 55 provide for such objectives.
25 In this matter it is clear that the site has limited good communal space for residential use and the proposal of Mr Briggs would represent an incursion into what good, but limited open space remains on the north-eastern edge of the building. Further, it was evident from the on-site hearing and view that the other substantive area of open space adjoining the subject site to the west was compromised by the constant traffic noise from the Pacific Highway. In reality it is likely that this area will be used much less frequently than other areas on the subject site. On these grounds the enclosure of the communal land on the north-eastern side of the subject site adjacent to unit 12 as per Mr Brigg’s proposal, is not acceptable.
26 It is apparent that the front private area of unit 12 has the potential to have near 100 % privacy and therefore some minor loss of privacy to the rear area of the units’ private open space is not unreasonable. However, I do accept Mr Brigg’s argument that there is a need for a buffer between the communal area and the rear private space at unit 12.
27 Consequently, I find that the Council’s suggestion of widening the plant bed down the east side of unit 12 from 0.6 m to 1 m and continuing it along the northern edge of the enclosed sun room and around to the eastern edge of the open terrace, will provide a sufficient buffer. This buffer can be planted with a range of low and high plants that will afford a natural break between the unit’s private open space and the communal open area.
28 In order for the court to make final its orders the applicant is to provide the following:
1. Final details of the size and width of the fences and their treatment (painting and modification) in relation to those that are to remain and those to be installed, including that adjacent to unit 1 and the area it will enclose;
3. Complete and final landscape plans for the property including the planting of several large trees that have not yet been included in the present landscaping of the property.2. Final details of the garden side bed that adjoins unit 12.
29 Therefore, after the applicant has served satisfactory revised and agreed conditions and plans the orders will be:
2. That the s 96 appeal, 10127 of 2009, under the Environmental and Planning Assessment Act, 1979 , in respect of Ku-ring-gai Council’s determination to modify a development consent (application no. MOD0423/08 – Modification of DA 1334/04) for proposed courtyard fencing and privacy screens at 2A-2B Killara Avenue, Killara, is upheld in part.1. That the s 97 appeal, 10126 of 2009, under the Environmental and Planning Assessment Act, 1979 , in respect of Ku-ring-gai Council’s determination for a development application for a strata subdivision of a residential flat building, Development Application No. 1163/08, at 2A-2B Killara Avenue, Killara, is upheld in part.
The revised and final plans will be retained on the court file.
___________________
- Dr Mark Patrick Taylor
Commissioner of the Court
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