Mackenzie Architects International Pty Ltd v Ku-ring-gai Council

[2017] NSWLEC 1273

Land and Environment Court

New South Wales

Medium Neutral Citation:	Mackenzie Architects International Pty Ltd v Ku-ring-gai Council [2017] NSWLEC 1273
Hearing dates:	29-30 May 2017
Date of orders:	01 June 2017
Decision date:	01 June 2017
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1. The appeal is dismissed. 2. Development Application No. 0495/15 for the construction of a multi-dwelling housing development containing 5 dwellings with basement parking at 8A Bruce Avenue, Killara, is refused. 3. The exhibits, other than exhibits 1 and A, are returned.
Catchwords:	DEVELOPMENT APPLICATION: Multi-dwelling housing development; whether the amalgamation of sites is feasible; non-compliance with the minimum site area and frontage development standard.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Karavellas v Sutherland Shire Council [2004] NSWLEC 251
Category:	Principal judgment
Parties:	Mackenzie Architects International Pty Ltd (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel: Mr A. Pickles SC (Applicant) Mr R. O’Gorman-Hughes barrister (Respondent)   Solicitors: Apex Planning and Environment Law (Applicant) Shaw Reynolds Lawyers (Respondent)
File Number(s):	2016/334738

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 0495/15 for the construction of a multi-dwelling housing development containing 5 dwellings with basement parking (the proposal), at 8A Bruce Avenue, Killara (the site), by Ku-ring-gai Council (the Council).

2. The appeal was subject to mandatory conciliation on 13 February 2017, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation conference, it was terminated pursuant to s 34(4) of the LEC Act.

3. Leave was granted by the Court on 5 May 2017 for the applicant to rely on an amended proposal (exhibit A).

Issues

4. The Council’s contentions can be summarised as:

• The applicant has not demonstrated that a reasonable offer has been made and refused by the property owner of the adjoining properties;

• The proposal does not comply with the site requirements for the multi dwelling housing development standard in Ku-ring-gai Local Environment Plan (Local Centres) 2012 (LEP 2012) and the written request for an exception to the development standard does not justify the variation sought;

• The proposal does not satisfactorily address the requirements of Ku-ring-gai Development Control Plan (Local Centres) (Local Centres DCP) for land consolidation, local character and streetscape, site layout, building separation, deep soil landscaping, car parking provision, private open space, dwelling mix and accessibility, dwelling placement and room design and sizes, building entries and internal pathways, building facades and articulation, building storeys, visual and acoustic privacy and design quality principles.

The site and its context

5. The site is on the northern side of Bruce Avenue. The adjoining property to the west of the site contains a five storey residential flat building over a basement. The properties to the east of the site contain a semi-detached pair of dwellings. There are a number of five storey residential flat buildings on the southern side of Bruce Avenue.

6. The area of the site is 1054sqm and the frontage is 18.29m.

The proposal

7. The proposal is for multi-dwelling residential development consisting of two three storey buildings; a southern building facing the street containing two townhouse style dwellings and the northern building to the rear, containing three townhouse style dwellings. There is a basement parking level with vertical access to an external area between the two buildings.

Planning framework

8. The site is zoned R4 High Density Residential and the proposal is permissible with consent. The objectives of the R4 zone, to which regard must be had, are as follows:

• To provide for the housing needs of the community within a high density residential environment.

• To provide a variety of housing types within a high density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To provide for high density residential housing close to public transport, services and employment opportunities.

9. The proposal complies with the height of buildings development standard for the site of 11.5m. The proposal complies with the floor space ratio (FSR) development standard of 0.8:1 (pursuant to cl 4.4(2E) of LEP 2012). The FSR map in LEP 2012 (Map FSR_014C) gives a FSR for the site of 1.3:1 and the site is within an area identified as Area 5. Clause 4.4(2E) is in the following terms:

(2E) Despite subclause (2), the maximum floor space ratio for development on land identified as “Area 5” on the Floor Space Ratio Map with a site area within the range specified in Column 1 of the table to this subclause must not exceed the ratio specified opposite in Column 2 of the table.

Column 1               Column 2

Less than 1,800 square metres      0.8:1

10. The proposal does not comply with cl 6.5 of LEP 2012, which is in the following terms:

6.5 Site requirements for multi dwelling housing and residential flat buildings

(1) The objectives of this clause are:

(a) to provide site requirements for development for the purposes of multi dwelling housing and residential flat buildings so as to provide for the orderly and economic development of residential land while maintaining the local character, and

(b) to ensure that lot sizes and dimensions of medium and high density residential sites allow for generous landscaped areas and setbacks to ensure the amenity of adjoining properties and to support the desired future character of those areas.

(2) Development consent must not be granted for the erection of multi dwelling housing or a residential flat building on a lot unless the lot has an area of at least 1,200 square metres and at least 1 street frontage of not less than:

(a) if the area of the lot is less than 1,800 square metres—24 metres, or

(b) if the area of the land is 1,800 square metres or more—30 metres.

(3) Despite subclause (2), development consent must not be granted for the erection of multi dwelling housing or a residential flat building on any lot on the land identified as “Area 1” on the Lot Size Map unless the lot has an area of 5,000 square metres or more.

(4) For the purposes of this clause, if a lot is a battle-axe lot or other lot with an access handle, the area of the access handle is not to be included in calculating the lot size.

11. The objectives for land consolidation at 3B of Local Centres DCP are relevant in terms of considering the future development of the properties on the northern side of Bruce Avenue to the east of the site. Objective 2 states:

To ensure consolidation patterns create usable allotments which relate to the site conditions and allow for development which is suited to the site, its context and strategic intent.

12. The controls for land consolidation include that consolidations are to increase the width of the street frontage and avoid irregular lot configuration and where a development results in an isolated lot, the applicant must demonstrate that reasonable offer has been made to the owner of the isolated site. It is the applicant’s position that the site is isolated because reasonable offers have been made to the owner of the adjoining semi-detached dwellings at 10 and 10A Bruce Avenue and those offers have been refused. Furthermore, 10 and 10A Bruce Avenue can be amalgamated with the properties to the east in the future.

13. The local character and streetscape objectives and controls for multi-dwelling housing, at 6A.1 of the Local Centres DCP, include the following relevant objectives and controls:

1. To improve the design quality of multi-dwelling housing.

2 To provide a successful transition between higher and lower density development.

3 To ensure that the development contributes to the greater Ku-ring-gai landscaped character of buildings within a landscaped garden setting and surrounded by canopy trees.

2 All multi dwelling housing developments are to demonstrate how they provide:

i) a garden setting with buildings surrounded by landscaped gardens, including canopy trees, on all sides; ii) a transition in built form between single dwelling residential buildings and high density apartment buildings.

14. The building setback objectives and controls at 6A.3 of the Local Centres DCP include the following relevant objectives and controls:

1 To ensure buildings are situated within a garden setting dominated by canopy trees.

2 To soften the built form and maintain the garden character of Ku-ring-gai.

3 To ensure deep soil areas within setbacks areas are clear of elements that compromise planting and growth of canopy trees.

4 To ensure adequate space between buildings to enable effective landscaping and to soften the built form.

5 To protect existing trees and provide areas for the planting of canopy trees, especially at the front and rear of the development.

Side and rear setbacks

2 A minimum setback of 3.0m is to be provided from any side boundary where the side elevation has non-habitable rooms only. Where a pedestrian pathway is located within this type of side setback, the minimum side setbacks are to be increased by the width of that path.

3 Where the dwellings are oriented towards side boundaries and/or have openings to habitable rooms towards side boundaries, the setback is to be a minimum of 6.0m.

15. The building separation objectives and controls at 6A.4 of the Local Centres DCP require a minimum 12m separation between habitable rooms and balconies between residential buildings on the same development site.

16. The controls for building entries and internal pathways at 6C.7 of the Local Centres DCP require that all ground floor entries to dwellings are to be located no more than 1m above natural ground level and falls in the ground level are to be accommodated within the design of the dwelling by utilising split levels.

17. The objectives and controls for dwelling and room design at 6C.6 of the Local Centres DCP include the following objective and control:

6 To provide dwellings with well proportioned and functional rooms of adequate dimension.

14 Where living and dining rooms are combined in an open plan, a minimum internal plan dimension of 8.0m is to be provided across both areas, with the secondary plan dimension remaining at 4.0m as in Figure 6C.6-2 to Figure 6C.6-4.

18. The controls for visual and acoustic privacy at 6C.12 of the Local Centres DCP include a requirement for building to be designed to ensure privacy to other onsite dwellings and to neighbouring properties.

19. The design quality principles at 6R.1 of the Local Centres DCP have been taken from a historical version of SEPP 65 which included very similar wording for design quality principles in Part 2.

Public submissions

20. One resident objector provided evidence at the commencement of the hearing on-site. In her view, the Council’s intention was for numbers 8A, 10, 10A and 12 Bruce Avenue to be amalgamated. She is concerned that the eastern side setback of the proposal is insufficient.

Has a reasonable offer been made for 10 and 10A Bruce Avenue?

21. In Karavellas v Sutherland Shire Council [2004] NSWLEC 251 (Karavellas) at [17], Commissioner Tuor set out the principles for determining when the amalgamation of properties is not reasonable feasible; despite the likelihood that amalgamation would achieve a better planning outcome.

22. The FSR development standard for the site amalgamated with the adjoining properties at 10 and 10A Bruce Avenue is 1.3:1, as the site and its neighbouring property are within the area identified as Area 5, and the combined site area exceeds the 1800sqm requirement in cl4.4(2E) of LEP 2012 for the 1.3:1 FSR. Despite the silence of LEP 2012 on the objective of creating a requirement for a minimum site area of 1800sqm to achieve the FSR shown on the FSR map, I accept the respondent’s submission that it is reasonable to infer from the terms of the FSR development standard that the strategic planning intention for areas identified as Area 5 in the LEP 2012 is to encourage amalgamations where necessary in order to achieve larger allotments for higher density residential development. The amalgamation of 8A with 10 and 10A Bruce Avenue would achieve a better planning outcome when compared to the proposal, because it would fulfil the strategic planning goal for this area.

Is amalgamation of the sties feasible?

23. The first question in Karavellas is whether amalgamation of the site is feasible.

24. 10 and 10A Bruce Avenue are in the same ownership. The two properties have an area of 1227.5sqm and are in the same R4 zone as the site and subject to the same provisions regarding FSR.

25. An offer of $4 million was made by the owner of the site on 7 June 2016 and again on 31 October 2016 to the property owner of 10 and 10A Bruce Avenue, based on a valuation dated 13 April 2016 of $3.7 million (f 133, exhibit 2). I accept the submission of the respondent that the valuation was based on a brief for a current market assessment on a single dwelling basis. The valuation dated 13 April 2016 includes the following statement at ‘13. General Comments’:

We have been instructed to undertake a current market kerbside assessment on the subject property for Sale Price Reserve Purposes. In accordance with our instructions, we have undertaken our valuation of a single dwelling basis.

26. Both parties commissioned a valuation assessment of the semi-detached dwellings at 10 and 10A Bruce Avenue. The Council’s valuation (exhibit 4) is dated 9 May 2017 and the applicant’s valuation (exhibit G) is dated 16 May 2017. The two valuations compare as follows:

Value of 10 and 10A	Exhibit 4	Exhibit G
Sold separately	$2.1 million each	$2 million each
Sold in one line	$3.05 million	$4.25 million
Sold in one line (with amalgamation of 8A)	-	$4.6 million
Sold in one line (with amalgamation of 8A and 12)	$4.95 million	$5.2 million

27. A reasonable offer from the owner of the site would be based on an independent valuation of 10 and 10A Bruce Avenue amalgamated with the site and may include other reasonable expenses.

28. I am not satisfied by the evidence before me that a reasonable offer has been made to the property owner of 10 and 10A Bruce Avenue and therefore I am not satisfied that it has been established that amalgamation of the site with 10 and 10A Bruce Avenue is not feasible.

Expert evidence

29. The applicant relied on the expert evidence of Mr Garry Chapman (planning) and the Council relied on the expert evidence of Mr Luke Marquet (planning) and Mr Angelo Korsanos (urban design).

Consideration

Non-compliance with the site requirements for multi dwelling housing development standard

30. The site, with an area of 1054sqm and frontage of 18.29m, does not comply with the minimum site requirements for multi-dwelling housing development at cl 6.5 of LEP 2012 of 1200sqm and 24m.

31. In order for development consent to be granted for a development that contravenes a development standard in LEP 2012, I must be satisfied that the proposal is consistent with the objectives of the development standard and the objectives for development within the zone (cl 4.6(4)(a)(ii) of LEP 2012) and that the applicant's written request has adequately addressed that compliance with the development standard is unreasonable or unnecessary in the circumstances (cl 4.6(3)(a) of LEP 2012) and that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) of LEP 2012).

32. The applicant’s written requests for the contravention of the development standard in LEP 2012 justifies the numerical non-compliances with the development standard as follows:

• The proposal satisfies the objectives of the R4 zone by providing a variety of housing, because the townhouse style dwellings with courtyards are an alternative to the residential flat buildings in the R4 zone;

• The proposal ensures that this isolated and sterilised site can be developed, without isolating other sites;

• The proposal provides a transitional building form between the residential flat building to the west and the semi-detached dwellings to the east;

• The proposal is consistent with the character in the R4 zone; and

• The proposal achieves good residential amenity.

33. I have considered the applicant’s written request under cl 4.6 of LEP 2012 and I am not satisfied that the written request justifies that compliance with the development standard in cl 6.5 of LEP 2012 is unnecessary or unreasonable in the circumstances of the appeal, for the following reasons:

• For the reasons given above, I do not accept the site is necessarily isolated;

• The proposal does not achieve the strategic planning intention for areas identified as Area 5 in LEP 2012 to achieve higher density development;

• A transitional building form does not represent a better planning outcome in this location as the site is not in a location that transitions between higher and medium density;

• The internal amenity of units 1 and 3 is unnecessarily compromised by having a maximum internal width for the townhouse style dwellings of 3.7m.

34. I accept that the proposal is broadly consistent with the objectives of the development standard and the objectives for development within the zone. I am not, however, satisfied that there are sufficient environmental planning grounds to justify contravening the development standard, as a reduced density on the site can only be justified if the amalgamation of the site and 10 and 10A Bruce Avenue is not feasible.

35. I make the following observations in regard to the contentions raised under the Local Centres DCP:

• The proposal, with two dwellings 3.7m wide internally, does not meet the relevant objectives of 6C.6 to provide dwellings with well-proportioned and functional rooms of adequate dimensions, despite being north facing and opening onto courtyards.

• The objectives for building setbacks are met by the proposal. The broad planning goal in 6A.3 is for multi-dwelling housing developments orientated across a site, with their private open space to side boundaries, to have a 6m setback from the boundary; and for dwelling orientated along a site with their private open space either in the middle, front or rear of a site to have a side setback of 3m. This is demonstrated in Figure 6A.3-1. In my view, a hopper window above the kitchen bench (which directs the view downwards when standing at the kitchen bench) or highlight windows in living areas or even bedroom windows on upper levels, with a 3m predominantly landscaped setback to the boundary, do not erode the planning purpose in 6A.3 and do not necessarily compromise the amenity of neighbouring properties.

• The proposal achieves the deep soil landscaping requirement and number of canopy trees requirement under 6A.6. Therefore, the proposal is acceptable in terms of landscaped area and setbacks and number of canopy trees.

• The separation between the northern and southern buildings does not comply with the numerical requirement at 6A.4. I accept the Council’s criticism of the treatment of the area between the two buildings, as the design is not well resolved. The transition in levels; the arrival point from the vertical circulation to the basement, the overlooking of the courtyards of the northern building; the proposed screens and the rear entry through the courtyards for visitors to the northern building are all aspects of the proposal that could be improved.

Findings

36. I am not satisfied by the evidence before me that a reasonable offer has been made to the property owner of 10 and 10A Bruce Avenue and therefore I am not satisfied that it has been established that amalgamation of the site and 10 and 10A Bruce Avenue is not feasible.

36. A variation of the minimum site area and frontage development standard in LEP 2012 is not unnecessary or unreasonable in the circumstances and the proposal cannot be granted consent.

Orders

38. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No. 0495/15 for the construction of a multi-dwelling housing development containing 5 dwellings with basement parking at 8A Bruce Avenue, Killara, is refused.

3. The exhibits, other than exhibits 1 and A, are returned.

____________

Susan O’Neill

Commissioner of the Court

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Decision last updated: 29 May 2018