Leonard v Ku-ring-gai Council

Case •

[2005] NSWLEC 126

•

03/30/2005

Land and Environment Court


of New South Wales


CITATION:

Leonard v Ku-ring-gai Council [2005] NSWLEC 126
PARTIES:

APPLICANT
Mr B Leonard and Carnegie Credit Management Services Pty Ltd

RESPONDENT
Ku-ring-gai Council
FILE NUMBER(S):

11389 of 2004
CORAM:

Moore C
KEY ISSUES:

Development Application :-
Dual occupancy
Character of area
.
LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s 149
Rivers and Foreshores Improvement Act 1948
State Environmental Planning Policy 53
Ku-ring-gai Planning Scheme Ordinance
Residential Design Manual – Development Control Plan 38
.
CASES CITED:

Leonard v Ku-ring-gai Council [2004] NSWLEC 330;
Segal & Anor v Waverley Council [2004] NSWLEC 363;
Tenacity Consulting v Warringah [2004] NSWLEC 140;
.
DATES OF HEARING: 18 and 22 March 2005
 
DATE OF JUDGMENT: 


03/30/2005

LEGAL REPRESENTATIVES:

APPLICANTS
Mr A Galasso, barrister
INSTRUCTED BY
Maddocks Solicitors

RESPONDENT
Ms J Jagot, barrister
INSTRUCTED BY
Deacons Solicitors


JUDGMENT:

      THE LAND AND
      ENVIRONMENT COURT
      OF NEW SOUTH WALES

      MOORE C

      30 March 2005

      04/11389 B Leonard & Carnegie Credit Management Services Pty Ltd v Ku-ring-gai Council

      JUDGMENT

Introduction

1 Commissioner: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed (and subsequent actual) refusal by Ku-ring-gai Council (the council) of Development Application 997/04 for construction of three dwellings on what is presently Lot D in DP 324517, known as 20 Warwick Street, Killara (the site). As the council has approved a subdivision of the site into two allotments, the present application seeks consent to construct a single dwelling on the proposed allotment fronting Warwick Street and a detached dual occupancy development on the proposed rear, battle-axe allotment.

2 In June 2004, Cowdroy J dealt with (and refused) Development Application 1652/03 to construct two detached dual occupancy developments on the site (subdivided in a slightly different configuration): see Leonard v Ku-ring-gai Council [2004] NSWLEC 330.

3 As a consequence, the position is that, if I reached a factual conclusion on any issue which differed from that reached by Cowdroy J, I would be obliged to articulate my reasons for drawing such different conclusion: see Segal & Anor v Waverley Council [2004] NSWLEC 363.

The site

4 The site has an area of 2928 sq m. It has a frontage to Warwick Street of 41.7 m and a depth of ~ 70 m. It is located on the western (low) side of Warwick Street. Although the site is not squarely east-west oriented, for the purposes of this decision, I will treat the Warwick Street boundary as being to the east.

5 The site slopes ~ 13 m from front to rear. It also slopes, more gently, down from south to north. A watercourse follows the northern boundary of the site. A number of large trees, mainly Sydney Blue Gums, are growing beside the creek or in the riparian zone. Other trees are scattered throughout the site, which is currently developed with a single dwelling house located towards the centre of the site.

6 Cowdroy J described the surrounding area in his decision. I adopt his description of the area which is as it being:

          ….. characterised by single dwellings on large allotments in landscape settings. The allotments include a number of battle-axe blocks and the houses are predominantly one and two-storey with some three-storey houses. There are a range of style and sizes, predominantly dating from the 1950’s and 60’s. Although there are some earlier houses, generally smaller cottages as well as more recent, larger houses. The gardens and streets in the area have large canopy trees that contribute to the character of the area.

7 My adoption of Cowdroy J’s description, of course, is necessarily tempered to the extent that the detailed elements contributing to the character and identity of the locality must be presumed to include, as discussed later in this decision, the dwelling proposed to front Warwick Street. This dwelling, therefore, must be taken into account in and form part of my assessment of the dual occupancy elements of the proposal.

Background

8 The application was lodged on 28 September 2004. It was notified to nearby residents and a number of individual objections and one petition (all opposing the development) were received by the council. The council refused the application, under delegated authority, on 2 March 2005.

Proposal

9 The plans proposed for consent have been modified in response to the draft report prepared by Ms K Gordon, the court-appointed town planning expert.

10 A further written submission on behalf of residents was received in response to Ms Gordon’s final report.

11 The three houses proposed are, in internal layout, of two to three storeys with the third storey being contained within the roof space. Each house would contain three bedrooms plus a fourth bedroom/study (with Dwelling 3 having both), with living, formal and informal dining and family areas and games room. They would have large decks facing north off the family and informal eating area. The three proposed houses step down the site to respond to the slope of the land.

12 As a result of the site inspection and comments by Ms Gordon and Mr I English, the court-appointed expert arborist, a further minor modification was made to the layout of the north-facing paved area and the deck above it of the single dwelling proposed for the front allotment. This redesign was undertaken to enhance the protection of the root zone of one of the Sydney Blue Gums and doing so resolved one of the tree issues in the proceedings.

13 The driveway runs along almost the length of the southern boundary. As a result of Ms Gordon’s report and further discussions on site during the view between Ms Gordon and Mr A Minto, a town planner retained by the applicants, the garage entrance to the rear dwelling was modified thus permitting a modest shortening of the driveway and further screening landscaping between the end of the driveway and the residence at 18 Warwick Street.

14 The changes noted above were incorporated in revised plans tendered in the proceedings.

15 A riparian zone is to be established within the northern setback area. The riparian zone is to be rehabilitated with the removal of weeds, the retention of existing trees and the planting of new trees and under storey planting. The rest of the site is to be landscaped. This is discussed in further detail later.

Statutory Framework

16 The site is zoned residential 2(b) under the Ku-ring-gai Planning Scheme Ordinance (the KPSO). Dual occupancy development is not permissible within this zone. Therefore, the provisions of the KPSO apply only to the proposed dwelling at the Warwick Street frontage.

17 The provisions of the Residential Design Manual – Development Control Plan 38 (the DCP) also apply to this dwelling.

18 However, State Environmental Planning Policy No 53 - Metropolitan Residential Development (SEPP 53) overrides, relevantly, the KPSO to permit dual occupancy development. Thus the proposed dual occupancy on the rear allotment is subject to the various tests in SEPP 53 rather than those in the KPSO or the DCP.

19 Some of the SEPP 53 tests are numerical and others are qualitative.

20 Clause 3 of SEPP 53 states:-


          (1) this policy aims to encourage the provision of housing in metropolitan areas that will:
              (a) broaden the choice of building types and locations available in the housing market,
              (b) make more efficient use of existing infrastructure and services,
              (c) reduce the consumption of land for housing and associated urban development on the urban fringe, and
              (d) be of good design.

21 Part 3 of SEPP 53 contains provision for dual occupancy development. The objectives in cl 15 are:-


          (a) to create opportunities for two dwellings to be developed on a single allotment of land, and
          (b) through the other provisions of this policy, to ensure that dual occupancy development is:
          (i) designed and assessed with the full understanding of the opportunities and constraints of each site, and
          (ii) designed and assessed having adequate regard for the design principles contained in Part 5.

22 The relevant numerical standards of SEPP 53 require a minimum allotment size of 600 sq m for detached dwellings; a maximum floor space ratio of 0.5:1 and provision for two car spaces for each dwelling with a gross floor area of more than 150 sq m. The council accepts that the proposed dual occupancy is numerically compliant.

23 The design requirements for dual occupancy development are set out in Part 5 cl 32 and include the following requirement:-


          Consent must not be granted for development to which this Part applies unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the following principles:
              (a) Streetscape: the proposed development should:
                  (i) contribute to an attractive residential environment with clear character and identity.

24 Compliance with the requirements of this clause was one of two key issues between the parties and the main concern of the residents.

25 Clause 32 also includes requirements relating to visual and acoustic privacy; solar access and design for climate; stormwater and visual bulk.

26 The Ku-ring-gai Development Control Code (the code) is an adopted policy of Council which aims to provide guidelines to achieve a good design outcome for dual occupancy development in accordance with SEPP 53. The code recognises that if there is an inconsistency, the provisions of SEPP 53 prevail.

27 As the site is within 40 metres of the top of a watercourse, the Rivers and Foreshores Improvement Act 1948 (the Rivers Act) requires, pursuant to s 22B of that Act, a Part 3A Permit be obtained.

Issues

28 The council filed a formal Statement of Issues in the proceedings. However, there were two fundamental issues in contention between the parties. These were whether the Sydney Blue Gum High Forest remnant could be protected adequately and whether the dual occupancy element of the development contributes to the character of the area as required by SEPP 53.

29 These concerns were shared by the resident objectors who also raised a number of other concerns which can be summarised as:-


        • the increase in water runoff from the site and potential flooding of properties down stream of the development;
        • impacts on adjoining and nearby neighbours, particularly privacy impacts from overlooking and noise and changed outlook;
        • the lack of visitor parking and the increase in traffic generated by the development;
        • the internal solar amenity of the proposal

30 During the course of the view, I heard from a number of the resident objectors. Agreed notes of this on-site evidence were subsequently tendered in the proceedings.

The proposed dwelling at the Warwick frontage

31 The proposed dwelling at the Warwick Street frontage is generally compliant with the KPSO and the DCP. The extent of non-compliance is minor. The council does not submit that such non-compliance should lead to the refusal of this dwelling.

32 At this point, I should note three other matters concerning the proposed dwelling at the Warwick Street frontage.

33 I put to Ms Jagot, barrister for the council, if I were to conclude that this dwelling were acceptable, that I should regard it as being part of the future streetscape and therefore part of the elements that would define the character of the area for my assessment of the appropriateness or otherwise of the proposed dual occupancy to the rear.

34 I asked if the council raised any objection to me undertaking an assessment on this sequential basis with that assessment commencing with the front dwelling.

35 In response, she indicated that the council accepted that, if it were otherwise unexceptional, the front dwelling should be regarded as part of the setting for my establishment and assessment of the character and identity of the locality and that there was no objection to a sequential approach to my assessments. Mr Galasso, barrister for the applicants did not demur with this approach.

36 Second, I also raised with the parties the question of a consent confined to the proposed dwelling at the Warwick frontage. The parties agreed that such a limited outcome was one properly available for my consideration.

37 As a consequence of those discussions and the process outlined above, I consider it appropriate to indicate, in this decision, whether or not the front dwelling would be, if I were to reject the proposed dual occupancy, itself capable of a separate consent, if desired by the applicants, arising out of these proceedings.

38 I also asked whether or not the council was putting to me that I should find that the rear allotment could not sustain a dual occupancy however designed. Ms Jagot indicated that the council was not seeking such a broad finding but was merely putting, in these proceedings, that the present design was not acceptable. My decision on the dual occupancy is, therefore, confined to determining that proposition.

Impact on trees on the site, particularly the Sydney Blue Gums

39 On the broad tree impact issues, Cowdroy J concluded that he did:

          not accept that there is evidence before the Court, which demonstrates that the impact on the trees, and the issues raised by Mr Fenn have been resolved. As the application fails on different grounds, further evidence on this matter is not required but the issue would need to be adequately addressed for any future application.

40 As a consequence, there are no significant Segal-invoking differences on the tree issues.

41 For the present proposal, the Department of Infrastructure, Planning and Natural Resources has issued General Terms of Approval for a permit pursuant to the Rivers Act and the council has incorporated them in its without prejudice conditions of consent.

42 These conditions include the requirement that a riparian zone be established along the watercourse. The riparian zone should be an average of 10 m and minimum of 5 m from the top of the bank of the watercourse and is to be planted with a diverse range of native plant species local to the area that are densely planted and fully structured. The applicants have not contested these conditions and have prepared a landscaping plan incorporating, inter alia, significant rehabilitation and landscaping within the riparian zone.

43 I should note at the outset that there is a limited issue between the court-appointed experts and the applicants with respect to the location of the proposed deck and paved area below on the northern side of Dwelling 3 and its intrusion into the minimum width of the riparian zone. However, it is agreed between the parties that, if this were a matter of concern to me, a modest amendment to the plans would be able to resolve it. The applicants indicated that they were prepared to make such an amendment. As a consequence, I do not have further regard to this issue.

44 A number of Eucalyptus saligna – Sydney Blue Gums are on or near the site. Blue Gum High Forest is an Endangered Ecological Community. The remnant of this forest on the site and in its immediate vicinity is a highly significant element in setting the character and identity of the locality.

45 It is in this context that I must assess the impact on the trees and the effect of the rehabilitation and landscaping plan.

46 Mr English was highly positive about the value of the landscaping and rehabilitation plan for the restoration of the riparian zone of the watercourse. Indeed, it would be fair to say that he was enthusiastic about its impact on the long-term prognosis for the area. Having carefully considered the plan, I share his enthusiasm for those future outcomes. However, that enthusiasm must be tempered, in my view, to the extent that such value could not outweigh any defects in the plans unless those defects were themselves of minor significance and, in the ordinary course of events, not themselves warranting refusal.

47 There were seven trees that warranted separate consideration as part of the tree related issues for the proposal.

48 Two of them, a Liquid Amber and a Sydney Blue Gum, necessarily require removal as a consequence of the erection of any realistically designed dwelling on the front allotment. As a reasonable expectation of such development is created by the subdivision, the council does not raise any issue with respect to these two trees.

49 Mr English considered two significant Sydney Blue Gums, which are on 18 Warwick Street adjacent to the western boundary of the site.

50 The southern of these is, in Mr English’s view, already irreversibly fungally infected and will inevitably fail at some future date. It was his evidence that prudent tree management requires its removal by the owners of 18 Warwick Street whether or not development on the rear of the two allotments of the site were to be permitted as part of these proceedings or in any other form at any other time.

51 With respect to the northern of these two Sydney Blue Gums, it was his view that the weight of the end of the eastern extending main branch of this tree (an extension which significantly overhangs the site) dooms this branch to failure at some future time. It was his opinion that if the deadwood on this branch and the end portion of it were not removed (whether or not there were to be development on the site), it was certain that this major branch would fail, probably from the main trunk of the tree, creating the probability of fungal or other future irreversible damage to that tree and its total loss in time. It was his expert opinion that it would be appropriate to remove the deadwood and, from the outer end of this branch, portion of its extremity which was loading this branch. This would, he said, ensure this tree’s long term survival. As with the other Sydney Blue Gum on 18 Warwick Street, he was of the view that this action was required whether or not the proposal was permitted or other future development proceeded on the site.

52 The issues relating to the fifth tree, also a Sydney Blue Gum, were resolved by the redesign to the balcony and paved area to the front dwelling – as noted earlier had been agreed to by the applicants.

53 The sixth tree is a mature Pittosporum undulatum – Sweet Pittosporum. It was Mr English’s evidence that the tree would need to have a significant proportion of its southern elements removed. He indicated that this would have some impact on its future life expectancy. Although I accept that this would occur, it is not an impact which would warrant refusal. Indeed, in the context of the restoration of the riparian zone, it is precisely the sort of lesser impact which might be an acceptable price for such restoration.

54 The seventh tree is a Cedrus deodara – Himalayan Cedar. Mr English was satisfied that it could be protected during construction by erection of substantial exclusion fence and associated conditions. However, because of the fact that it would grow substantially larger (reaching ~ 1 m trunk diameter at chest height) and ~ 30 m high, there would be a strong desire from future residents of Dwelling 2 for its removal for amenity reasons coupled with those residents’ concerns about the branches of such a substantial tree in proximity to their dwelling.

55 In light of this evidence (uncontradicted by anything observed on the view or any other expert evidence), I am satisfied that all presently relevant tree and landscaping issues for the totality of the proposal can be dealt with by way of the conditions proposed by Mr English. The applicants indicated that they would accept those conditions.

56 To the extent that there might be some future application to the council for the removal of the Himalayan Cedar that would necessarily be a matter for the council on such application and not for me to anticipate in these proceedings.

57 In addition, to the extent (if any) that the giving effect to Mr English’s proposed conditions is resisted by Mr and Mrs Harkness, the owners of 18 Warwick Street, that is a matter not able to be dealt with by me in these proceedings and would need to be resolved by agreement or in another forum.

Character of the area

58 Cowdroy J determined, in the earlier proceedings:


        29. I accept Mr Minto's evidence that the test in SEPP 53 is not whether the development is to be the same as that which currently exists. The SEPP contemplates a different form of development, but that form must contribute not only to an attractive residential environment but also to one with clear character and identity . To achieve the objective, the new development must respond to those features of the existing area that provide the clear character and identity. In this location the key feature is evident from the circumstance that the built elements are subservient to the open space and landscape. The majority of houses are on large allotments, including battle-axe allotments. The size of the houses in relation to their allotments provides space and separation between buildings and for landscaping. This includes an upper canopy of large trees as well as landscaping around the houses. The size of these trees makes them a dominant feature and their canopy is visible throughout the area.

        30. There are houses that have minimal side separation, but these houses are generally smaller and still appear as buildings in landscaped settings. They have large areas of open space to the front and rear which overall provides a sense of separation and space between the dwellings. These spaces are used only to provide a setback from the side boundary and landscaping. They are generally not activity areas other than to provide access. The houses in the area, and those that are close together are also different in design, size and materials. This means that the houses when viewed along the street, despite being close together, are clearly distinguishable as separate dwellings.

59 I accept that the relevant test for me to apply, with respect to the second of the issues between the parties, is that adopted by Cowdroy J.

60 Having viewed the site and several neighbouring properties; walked the immediate street area with the parties and, with the agreement of the parties observed, on my own, a somewhat wider area, I am satisfied that the description of the character and identity of the area articulated by Cowdroy J is one I should adopt in these proceedings.

61 The critical elements of Cowdroy J’s conclusions on this issue are contained in the following paragraphs of his decision.


        31. The size of the proposed allotments is not dissimilar to other allotments in the area. However, the placement of two almost identical houses on each allotment with very little separation will result in them appearing as one development. The separation between the houses is negligible, and is not sufficient to break down the overall mass of the development.

        32. I do not accept Mr Minto’s evidence that the development is acceptable as it is visible from only limited vantage points and will be screened by landscaping and hidden behind the front dwelling. The driveway runs along almost the length of the site and the placement of a tree and shrubs in front of each dwelling will not prevent the entire development from being seen down this driveway. The view corridor from the north is not narrow being some 12m to the boundary and a further 16m to the adjoining house at 22 Warwick Street. Landscaping may screen the development from this aspect but it is not a sound planning principle for a development to be acceptable only if screened.

        33. The overall form of the development is likely to be seen through the landscaping. The elevation to the north is of four, three storey houses. Although the third storey is within the roof space which assists in reducing the overall bulk of each building, the roof space and the dormers are large, and the buildings will be viewed as three storeys. Four large houses with little separation is not characteristic of the area.

        34. Houses one, two and three are built to their western boundary and separated by a maximum of 3.7m. A courtyard is proposed off the dining area on the eastern side of each house. These courtyards are below and face the blank wall of the adjoining house on the boundary. The experts were unable to confirm whether the shadow drawings included the change in level but they indicate that the area between the dwellings would be largely in shadow throughout the day in midwinter.

        35. In contrast to the existing subdivision pattern of the street, the front of the proposed houses face the driveway to the south and the rear of the houses face towards the north with the deck as the main area of open space. The space between the buildings are similar to side setbacks. However, they do not serve a similar function as they also provide courtyard areas. The amenity and utility of these spaces was of concern to Mr Fletcher. He considered that the areas served little purpose and that the provision of two attached dual occupancy developments would enable greater separation that would better break up the development and provide opportunities for landscaping between the buildings.

        36. Mr Fletcher also raised concerns about the amount of usable open space. A large part of the site is required as a riparian zone and will be densely vegetated. The area of open space, particularly for houses 2 and 3, is limited to the north facing deck areas. In his opinion this is not sufficient for dwellings of this size. Additionally the north will receive only filtered sunlight due to the dense planting required for the riparian zone.

62 The conclusion reached by Cowdroy J on this issue is set out in his decision in the following terms.


        37. The four houses are almost identical in design, materials and form. This is characteristic of villa or town house development and not characteristic of development in the area. The similarity of the houses means that rather than presenting as separate and different dwellings, they will appear as one homogenous development. This, together with the lack of separation between the houses results in a development that is different to the clear character and identity of the area to such an extent that it does not contribute to an attractive residential environment.

63 It is convenient to set out Ms Gordon’s opinions concerning the views of the proposal from each of the three public domain vantage points.

64 Her opinion concerning the view from directly in front was that it would be an appreciation which would largely be of Dwelling 1. She reached this conclusion because the slope of the land and building of this proposed front dwelling would obscure the view of the dwellings behind. She concluded that Dwelling 1 on the eastern allotment was an appropriate design in the streetscape context and that it would be viewed largely in a garden setting.

65 I accept her conclusions in this regard those with respect to the frontal view of the development and the appropriateness of the Warwick Street-fronting dwelling. I do not understand that the council contradicts either of these positions.

66 It is also desirable to note, in the context of the acceptability of the proposed Warwick Street-fronting dwelling, that she also said that:

          The provision of the pedestrian entry to address Warwick Street rather than the driveway is appropriate in the streetscape context.

67 This is a difference in the presentation of the front dwelling in this proposal compared to that which was before Cowdroy J where all four proposed dwellings had their entrances from the driveway.

68 The southern elevation, which would be viewed obliquely from Warwick Street down the driveways of 18 Warwick Street and the site, is depicted below:

69 With respect to the oblique view of this elevation of the proposal, Ms Gordon wrote, at paras 3.12 to 3.17 of her report:


          The view is seen from Warwick Street between dwellings on No.16 Warwick Street and the proposed three dwellings, with a view corridor approximately 14 m wide. This viewing corridor is disrupted by existing vegetation, which is to be retained. From the street in front of No. 16 Warwick Street, little of the development will be visible viewed the slope of the land, the hedge at the front boundary and driveway landscaping on No. 18 Warwick Street.

          From more directly opposite the driveway of No. 18 Warwick Street and the proposed driveway, the viewing corridor is also broken by the existing pine trees along the driveway of No. 18 Warwick Street. This will effectively mean that the south-eastern facades of only Dwellings 1 and 2 will be visible from the street, particularly given the proposed Photina hedge and the slope of the site. appropriate colours.

          Subject to appropriately different colours/materials being used for the facades of these two dwellings, they will appear sufficiently different and are appropriately spaced to be read as being in a landscape setting. The landscaping to the front of these dwellings of Murraya hedge and Lagerstoemia Indica will provide an appropriate landscape setting for the dwellings, which will have a single storey scale from this viewpoint.

          A concern with the view of the development from this viewpoint, however, is the unnecessary length of the driveway. The extension of the driveway from the front to the rear boundary is unnecessary, reduces the ability to landscape in the “traditional rear yard” area of the site and could be resolved by a redesigned layout of the ground floor to provide the garage closer Street.

          This would free up the rear corner of the site for landscaping, and would also further move the driveway away from the dwelling at No. 18 Warwick Street. At the very least the driveway could be reduced in length by 4.5 m, whilst still allowing for the vehicles using the garage of Dwelling 3 to turn onsite and enter and exit in a forward direction. This would appropriately allow for the continuation of a landscape setback to No. 18 Warwick Street.

          Therefore, subject to appropriately different materials/colours being used for each dwelling and the reduction of the length of the driveway to allow appropriate landscaping of the rear yard portion of the site, the streetscape from this viewpoint will be acceptable and this issue will be satisfied.

70 The northern elevation would also be viewed obliquely, across the watercourse, from Warwick Street as one commenced to pass the front dwelling and go up the slope toward the intersection between Warwick Street and Spencer Road. The northern elevation is depicted below:

71 Ms Gordon analyses the view across the watercourse at paras 3.3 to 3.10 of her report. She separately considers the three elements of the proposed development. She describes as Dwelling 1 as presenting largely as a two-storey dwelling.

72 In her initial consideration, she was concerned at the visual bulk of the middle dwelling, the first of the proposed dual occupancies, which would have been viewed as a three-storey building for reasons she articulated in para 3.5 of her report. It was her opinion that the amended plans which effected changes in the internal location of elements on the topmost level of this dwelling resolved these difficulties by reducing the apparent bulk of the northern portion of the dwelling as viewed from Warwick Street. I accept this conclusion.

73 With respect to Dwelling 3, she said, at para 3.8 of her report:


          Dwelling 3, similarly to Dwelling 2, provided an excessively bulky presentation in the original plans with the dormer element associated with the sunroom being excessively bulky and presenting as a three-storey building from this viewpoint. However, again this has been adequately addressing in the amended plans, which have deleted the sunroom, providing a study in the central portion of the first floor plan and removed the large dormer element at the northern end of the building. These changes result in a significant reduction in the bulk of the dwelling as viewed down the creekline from Warwick Street, from where it will appear two storey. The visual separation between Dwellings 2 and 3, at 10 m is adequate and the retention of Trees 19 and 21 assist in reducing the visual bulk .

74 As a consequence of her consideration of the northern view of all three dwellings, she drew the conclusions set out in paras 3.9 and 3.10 of her report:


          The north-western and north-eastern facades and setbacks of Dwellings 1, 2 and 3, are sufficiently different, subject to the use of different materials/colours to present as individual dwellings in a landscape setting, rather than as a series of regimentally located replicas of the same building. The facades, together with the proposed separation between dwellings and proposed landscaping, will present an attractive residential character and identity, providing for dwellings of appropriate bulk, located in a landscape setting.

          However it is appropriate that an assessment be made of the colour selection for the development in order to ensure the difference between dwellings is enhance [sic] and not reduced by the selection. As no colour selections have provided for assessment a deferred commencement condition is recommended to allow Council to approve an appropriate colour scheme for the development.

75 In the conclusion to Ms Gordon’s report, she set out her proposed deferred commencement condition. It was in the following terms:


          Prior to the commencement of the consent details of colours selected for each dwelling are to be provided for the approval of Council. Colour selection is to emphasis [sic] the difference between the dwellings within the development, but is to be appropriate to the landscape setting and character of the area. Once approved the colour selection will become a condition of consent and shall not be amended without further application to Council.

76 It is my view that in consideration of the matters arising from cl 32(a)(i) of SEPP 53, the appreciation which is required is not that of a skilled or trained observer such as an architect or planner but that that which would be drawn by a reasonably observant lay person from within the broader community. That observation, in my assessment, is one which would be made by a person undertaking more than a casual or fleeting observation of the development but would not go so far as to be an observation made with intense scrutiny or, indeed, on a basis which might arise from being a neighbour of such development.

77 As noted earlier, such observation would need to be made on the assumption that Dwelling 1 was already there as part of the streetscape and contributing to the character and identity of the residential environment of the locality.

78 I accept that, to such a lay observer, in any examination of the development, when viewed from either side elevation displaying to Warwick Street, there would be many stylistic and architectural similarities – despite the differences which a more skilled or professional observer might note. This can, in my opinion, be observed from consideration of the two monochromatic elevations depicted earlier. Consideration of them, of course, must be done with caution as the views of them, contrary to their frontal depiction in elevation, will be oblique ones.

79 However each elevation shows, to a reasonable lay observer, strong elements of similarity. It is not as if, for example, the front dwelling had a “Tuscan Villa” styled house behind it with a “Tudor Manor” style one to the rear (these examples not being put as representing a satisfactory design outcome, merely as an example of stark differentiation – any future design of a rear development will obviously need to be assessed on its individual merits).

80 The view of the northern elevation shows strong similarity in the fenestration to the lower two levels of Dwellings 2 and 3 – fenestration not dissimilar to that assumed for the dwelling on the front allotment.

81 The view of the northern elevation also shows strong similarity in the roof form of Dwellings 2 and 3 (particularly as the rearward element of the roof of Dwelling 2 will be at least somewhat obscured from Warwick Street, if not hidden) – roof forms themselves not totally dissimilar to that assumed for the dwelling on the front allotment.

82 The view of the southern elevation shows strong similarity in the fenestration and garage door view of Dwellings 2 and 3 – the garage doors being the same in design to that of the dwelling on the front allotment.

83 The view of the southern elevation shows less similarity in the roof forms of Dwellings 2 and 3 as well as to that of the dwelling on the front allotment.

84 I also accept that the view of the southern elevations will be of much shorter duration (being, at most reasonably assumable, the time for an observer to stroll across the driveway on the site and that of 18 Warwick Street).

85 I am satisfied that, on the test pursuant to cl 32(a)(i) of SEPP 53 as I understand it, the reasonable lay observer would see three dwellings of sufficient uniformity to think that, in effect, they were out of the same mould with minor thematic variations. This is out of character with the character and identity of the present streetscape and would detract from rather than contribute to an attractive residential environment with clear character and identity as required from the clause. The view of the southern elevation would not support such a conclusion on its own but adds support to that to be drawn of the northern elevation. The presentation of the northern elevation warrants refusal in its own right.

86 In case I be wrong as to the test to be applied, I turn to a further consideration of Ms Gordon’s views of the proposal.

87 First, I note that I am satisfied that the agreement between Ms Gordon and Mr Minto has brought about a driveway redesign (although not to the extent Ms Gordon originally proposed) which is acceptable.

88 I have set the relevant portions of her report out in full earlier so that there could be no doubt as the precise terms of them. The critical elements concerning the northern elevation, from paras 3.9 and 3.10 of her report, warrant repeating:

          The north-western and north-eastern facades and setbacks of Dwellings 1, 2 and 3, are sufficiently different, subject to the use of different materials/colours to present as individual dwellings in a landscape setting, rather than as a series of regimentally located replicas of the same building. The facades, together with the proposed separation between dwellings and proposed landscaping, will present an attractive residential character and identity, providing for dwellings of appropriate bulk, located in a landscape setting.

          However it is appropriate that an assessment be made of the colour selection for the development in order to ensure the difference between dwellings is enhance [sic] and not reduced by the selection. As no colour selections have provided for assessment a deferred commencement condition is recommended to allow Council to approve an appropriate colour scheme for the development.

89 At 3.14 of her report, she notes a requirement, in her opinion, for the use of different materials/colours for the southern facades for Dwellings 1 and 2 to ensure appropriate differentiation.

90 Cowdroy J’s conclusion was that the earlier proposal was for four houses, inter alia, which would appear as one homogenous development. The present proposal, when viewed from a more technical perspective, is not homogenous but the clear inference to be drawn from Ms Gordon’s conclusions is that sufficient differentiation can only be achieved by the imposition of differentiating colours and materials and the maintenance of such differentiation by condition of consent.

91 This is not a sound general planning approach for two reasons.

92 The first is that, unless there are strong heritage or similar reasons to impose and retain colour schemes, it is not accepted practice to do so.

93 The second relates to the necessity for future owners of the property to be aware of such conditions in order to abide by them. Conditions of consent are not required to be disclosed on certificates issued pursuant to s 149(2) of the Act. Whilst these proposed colour and materials imposing conditions could be disclosed on any certificate issued by the council pursuant to s 149(5) of the Act, usual conveyancing practice relies only on s 149(2) certificates. Imposing restrictions which are unlikely to come to the attention of future owners without some form of guaranteed notification to prospective purchasers is only likely to have such conditions fail or to require controversial enforcement on owners who were unaware of them at the time of their purchase of the property. Neither is an acceptable outcome.

94 Further, however, if I be wrong about both these conclusions, I have considered the separate colour schemes tendered by the applicants – one for each dwelling.

95 Each had a list of materials and colours. There were swatches for each of the six colours for each dwelling. Separate colours were provided for:

        • Roof tiles;
        • Gutters and garage doors;
        • Fascias;
        • Walls;
        • Window frames; and
        • Front doors.

96 Although the roof tile colours are nominated as being different (Dwelling 1 – Gun Metal; Dwelling 2 – Charcoal and Dwelling 3 – Ebony), to my eye it would almost require a spectrograph to tell them apart.

97 Although the wall colours are different (Dwelling 1 – Corsica; Dwelling 2 – Banksia and Dwelling 3 – Stone) there is a strong tonal similarity between them.

98 On the other hand, there are more significant differences between the fascias, window frames and gutters.

99 However, when taken together, the wall and roof colours would dominate the view of the northern elevation from Warwick Street. As a consequence, even if I am wrong about my earlier reasons for rejecting the use of colour schemes for acceptability of differentiation, I am not satisfied that the colour schemes achieve what Ms Gordon postulated was necessary.

100 As a result of all the foregoing, I have concluded that the proposed dual occupancy is a development that is different to the clear character and identity of the area to such an extent that it does not contribute to an attractive residential environment.

101 Contrary to the general principle that landscaping should not be used to hide an otherwise unsatisfactory development, the proposition that landscaping hiding the development might be appropriate to apply in this context (where the landscaping is a highly significant element in setting the character and identity of the locality) could warrant some consideration because of the valuable contribution the proposed landscaping would make to the riparian zone.

102 It was Mr English’s evidence that it would require ~ 5 years before there was sufficient time for significant establishment of landscaping in the riparian zone and that it would be ~ 15 years before there was complete establishment of the landscaping in this area.

103 Thus I cannot be satisfied that any unacceptable impact of views of the northern elevation could be hidden before ~ 5 years had passed.

104 As a consequence, the fact that such screening would not be in place for ~ 5 years, at least, after the commencement of the development is sufficient not to permit, even in the special landscaping circumstances of the character and identity of this locality, the otherwise highly desirable landscaping and riparian restoration element to be used to enable an otherwise unsatisfactory development to pass muster. Even if the effect were to be immediate, I would be inclined, on balance, not to accept the development although it would be a more difficult choice to face.

Downstream stormwater impacts

105 Mr P Mahony, resident at 13 Norfolk Street to the west of the site (but being one allotment removed from the site), was particularly concerned as his property is built over the open watercourse. He was concerned that the increase in built upon area would result in increased runoff and flooding of his property.

106 The development proposes to deal with stormwater discharge by using detention tanks, which will discharge into the watercourse. The purpose of the detention tanks is to detain the increased rate of runoff evening out existing and post development stormwater flows. In the council’s view this drainage scheme was acceptable subject to conditions. As a consequence, the council accepts that stormwater conditions for downstream properties will not change and the risk of flooding will remain the same. In the absence of any expert evidence to the contrary, I also accept that stormwater discharge from the site can be adequately be addressed.

Privacy

107 Cowdroy J held (at para 44), with respect to the earlier more intense proposal that:


          The setback of the development from 18 Warwick Street and 22 Warwick Street is sufficient to mitigate any visual privacy impacts.

108 There is nothing observed by (or put to) me which would cause me to reach any different conclusion with respect to this less intense proposal.

Views from neighbouring properties

109 In para 44 of his decision, Cowdroy J observed that:


          The outlook from adjoining properties will change but the extent of this change is dependent upon the retention of trees and the provision of landscaping discussed above.

110 In light of His Honour not reaching a concluded position on this issue, there are no matters which I need deal with conformably with the decision in Segal.

111 However, I should discuss the change in outlook from each of 16, 22 and 22A Warwick Street.

112 With respect to the outlook from 22A Warwick Street, I note that, in his written submissions, Mr Shaw, a resident of this property, did not raise the specific issue of the outlook from this property but he did do so in his oral evidence. However, as I did not visit this property and have no information on the uses to which the rooms with windows facing the site are put I can give little weight to the impact on this outlook.

113 In addition, Mr Ashton, the then future owner of 22 Warwick Street (he being the executor and beneficiary under the will of the late owner [his mother]), objected to the view of the roofs of the proposal from this property. As was the case with Mr Shaw’s residence, I did not visit 22 Warwick Street. Thus I have no information on the uses to which the rooms with windows facing the site are put and I can give little weight to the impact on this outlook.

114 Concerning the outlook from 16 Warwick Street (the Crittenden residence), I consider it appropriate that I adopt and apply, mutatis mutandis, the relevant principles concerning impacts on views set out by Roseth SC in Tenacity Consulting v Warringah [2004] NSWLEC 140.

115 During the view, I visited the upper level master bedroom balcony and the ground floor rear living area of 16 Warwick Street.

116 Adapting the Tenacity principles, I am satisfied that the view from the upper level master bedroom balcony will be altered by the proposal and become dominated by roofs with much less landscaping. This perception of change will arise if any dual acceptable occupancy is erected on the rear allotment as the relevant aspect from the balcony is to the north-west. As the council does not put to me that the rear allotment could not sustain a dual occupancy, my assessment of this impact must be made on the basis that some dual occupancy may occur on this allotment. Whilst some other dual occupancy might have a lesser impact, nonetheless there will inevitably be the shift in emphasis of outlook from greenery to roofs if such development were to occur. In addition, the view is from a bedroom balcony. The impact on this view, for these two reasons, would not warrant refusal nor does it contribute significantly to refusal of the dual occupancy element of the present application.

117 Although the view the ground floor rear living area will also be impacted by the proposal, my assessment of this impact must also be made on the basis that some dual occupancy may occur on the rear allotment. Any such development (and, indeed any single substantial dwelling on the rear allotment) is likely to impact the present outlook from this area. Whilst the desire to retain this outlook undisturbed is understandable, the impact on this view would not warrant refusal nor does it contribute significantly to refusal of the present application.

118 Second, the impact of the proposal when viewed from neighbouring properties is not a matter arising in the context of my assessment pursuant to cl 32(a)(i) of SEPP 53 as the impacts on these views are not streetscape impacting ones and cannot accumulate with those from any vantage point in Warwick Street.

119 There is, therefore, no view impact of this proposal which would warrant its refusal.

Parking and traffic

120 In para 45 of his decision, Cowdroy J observed in relation to carparking, no visitor parking is provided but this complies with the requirements of SEPP 53 and council’s code. There is adequate parking in the street and the traffic and parking generated by this development will not adversely impact on the area.

121 His Honour also concluded, in para 44, that:


          The development will result in an increase in noise from extra people using the site, but this is not unreasonable. The extra traffic along the driveway adjacent to 18 Warwick Street would result in an increase in noise, which is a negative feature of the development but is not unreasonable and of itself is not sufficient to warrant refusal.

122 There is nothing observed by (or put to) me which would cause me to reach any different conclusion – particularly as the present proposal is for three dwellings not four and the reasonable expectation of correspondingly fewer resident or construction vehicles or construction activity on the site.

Sunlight

123 Ms U Lang, the council’s Executive Planner, prepared a report on the plans as they were before the amendments made in response to Ms Gordon’s comments. Her report, at page 10, deals with the issue of solar access and design for climate. These comments are not affected by the amendments. They are in the following terms:


          All living areas and outdoor private open spaces of each of the three dwellings have normally orientation, and therefore enjoy a reasonable amount of solar access during different periods of the day. This solar access if [sic] filtered due to the overshadowing from large trees in proximity to the watercourse, but the overall amount of solar access, notwithstanding the shading from the trees, is satisfactory.

124 Having regard to the orientation to the site and the immediate topography to the north, I am satisfied that, despite the concerns expressed by residents, the limitations on solar access for the proposed dual occupancy dwellings will, essentially, be similar for any dwelling or dwellings constructed on the rear of the two allotments. I would not, therefore, regard matters relating to solar access as warranting refusal nor as to contributing to a refusal.

Conclusions

125 The dual occupancy element of the proposal complies with the numerical controls in SEPP 53 for dual occupancy development. The objectives for dual occupancy development are to ensure that the opportunities and constraints of each site are assessed and that there is adequate regard to the design principles to achieve good design. For the reasons stated above, I find that this element of the proposed development does not meet these objectives, as it will not contribute to a residential environment with clear character and identity. I am therefore not satisfied that adequate regard has been given to this principle and that, as required by cl 32 of SEPP 53, this element of the application warrants refusal.

126 I also repeat, as noted earlier, that the council was not putting, in these proceedings, that all dual occupancy on the rear allotment was unacceptable. My decision on the dual occupancy is, therefore, confined to dealing with the present design only.

127 Although the single dwelling element of the application does not comply with all the numerical controls in the KPSO and the DCP, the extent of non-compliance is minor and is not pressed by the council as warranting refusal of this dwelling. There are, on the plans (as now amended) of the proposed single dwelling on the Warwick Street frontage, no other objections pressed by the council to this element.

128 It seems to me, as observed to the parties during the hearing, that, if the applicants wish it, this element of the application is capable of and appropriate to be given approval despite my conclusions relating to the proposed dual occupancy.

Scope of proposed orders

129 I would therefore indicate that, if sought by the applicants, the Court would make orders to uphold the appeal to the extent necessary to grant, subject to conditions, a consent to the proposed single dwelling on the Warwick Street frontage.

130 If the applicants do not wish to be given such a limited consent, the appeal will be dismissed with the exhibits, other than Exhibit J, being returned.

131 To permit the limited consent to be effected if desired, revised plans limited to the development on the front allotment will need to be filed and served and conditions applicable to that development settled between the parties. If there are any conditions in contention during such process, the directions below will permit a short hearing to enable me to adjudicate on them.

132 I do not consider that such revised plans would be likely to require consideration by either court expert on the assumption that they will merely reflect the relevant extracted portions of the present plans for the whole site. Any application contrary to this position is to be brought before me pursuant to the leave to re-list in the directions below.

Directions

133 The parties are, therefore, given the following directions:

        1. The applicants are to advise, in writing, the Court and the council whether they wish to be given a consent for the proposed single dwelling on the Warwick Street frontage. This is to occur by 5pm on 6 April 2005;
        2. If the applicants do not so advise by 5pm on 6 April 2005 that they wish to be given a consent for the proposed single dwelling on the Warwick Street frontage, orders will be made in Chambers dismissing the appeal;
        3. If applicants do advise that they wish to be given a consent for the proposed single dwelling on the Warwick Street frontage, the applicants are to file and serve plans to effect this by 5pm on 13 April 2005;
        4. If applicants advise that they wish to be given a consent for the proposed single dwelling on the Warwick Street frontage, the respondent is to file and serve conditions to effect this by 5pm on 22 April 2005. The conditions are to be filed electronically and in a format compliant with Practice Direction 2 of 2005;
        5. Unless the appeal is dismissed pursuant to direction (2), the matter is set down for callover before the Registrar on 28 April 2005;
        6. If agreed plans and conditions for the proposed single dwelling on the Warwick Street frontage are filed prior to callover, orders will be made in Chambers upholding the appeal to the extent of giving a consent confined to the proposed single dwelling on the Warwick Street frontage and the Registrar’s callover will be vacated; and
        7. Liberty to relist before me at 9am on 2 days’ notice.

Commissioner of the Court

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Leonard v Ku-ring-gai Council [2004] NSWLEC 330
Segal & Anor v Waverley Council [2004] NSWLEC 363
Tenacity Consulting v Warringah [2004] NSWLEC 140