Macri v Ku-ring-gai Council

[2011] NSWLEC 1093

Land and Environment Court

New South Wales

Medium Neutral Citation:

Macri v Ku-ring-gai Council [2011] NSWLEC 1093

Hearing dates:

14 and 15 December 2010. Conditions 17 January 2011

Decision date:

15 April 2011

Before:

Murrell C

Decision:

1. The appeal in respect of the property known as 6 Shinfield Avenue St Ives is upheld.

2. The development application submitted to Ku-ring-gai Council and as amended for a multi-unit development of eleven dwellings with 23 basement parking spaces is determined by the granting of consent, subject to the conditions in annexure 'A'.

3. The exhibits are returned to the parties, with the exception of: 1, A, M, O, and P.

Catchwords:

DEVELOPMENT APPLICATION: Multi-unit dwellings; impact on adjoining properties and streetscape; consistency with zone objectives and whether the 30m minimum frontage standard should be varied; consistency with DCP provisions and urban design principles of RDFC; adequacy of landscaping; and whether amenity for adjoining residents and future residents of units is satisfactory in terms of solar access, disabled access, privacy and built form.

Cases Cited:

Agostino v Penrith City Council [2010] NSWCA 20 172 LGERA 380
Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWC 226
Zhang v Canterbury City Council [2001] NSWCA 167

Category:

Principal judgment

Parties:

Mr Stephen Macri (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Mr M Staunton (Applicant)
Mr C Leggat SC (Respondent)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

10626 of 2010

Judgment

1. The applicant in these proceedings is seeking to construct a multi unit development containing eleven town house style dwellings with twenty-three basement car parking spaces on the site known as 6 Shinfield Avenue St Ives.

1. The council refused the development application and the applicant appealed to the Court under s97 of the Environmental Planning and Assessment Act. By way of background, this matter commenced as a conciliation conference onsite and this was subsequently terminated and the parties consented to me determining the appeal by way of a formal hearing under s34(4) of the Land and Environment Court Act. The parties agreed to the Court having regard to the s34 conciliation conference where an extensive site inspection was undertaken and the Court also heard from a number of resident objectors to the proposal.

1. To the east of the site at No. 8 is a large seniors living development known as 'Pemberley Grove' that is an older townhouse style community title seniors living development. To the west of the site at No. 4 there is a detached single-storey dwelling on a large allotment of land and on the northern boundary there are commercial development sites with frontage to Mona Vale Road. To the northwest there is an existing service station that also has frontage to Mona Vale Road. The site is in close proximity to the St Ives town centre and the locality is characterised by a mix of existing commercial and retail development, detached residential dwellings, seniors living development and more recent apartment style and multi-unit development. The aerial photograph at Figure 1 shows the site in its context.

1. The subject site has a frontage of 23.775 m Shinfield Avenue and a site area of 1942 sq m. The site has a cross fall on the front boundary of approximately 1.8 m and there is a fall of some 2 m through the centre of the site from the western to the eastern boundary. On the site there is a single-storey dwelling that is proposed to be demolished. The proposed development is shown in the site plan at figure 2 and the elevations in figures 3, 4, and 5.

Contentions

1. The Respondent prepared a statement of contentions as follows:

1. Non-compliant frontage to Shinfield Avenue

Particulars:

The proposed frontage to Shinfield (23.775m) fails to comply with clause 6.1 (2) in the KLEP (Town Centres) 2010 which requires a frontage of 30 metres. The applicant has provided a written request for a variation to this development standard that fails to demonstrate that the non-compliant frontage would provide a better development outcome as required by clause 4.6.1(b) because:

(i) The narrow frontage promotes a "gun barrel" design that is prohibited under section 3D.1 2 - objectives 1 & 2 in the Ku-ring-gai Development Control Plan (Town Centres) 2010.

(ii) The proposed building layout is likely to cause the following impacts upon internal amenity, the streetscape and/or adjoining properties:

• The basement protrudes into the front and side setbacks reducing the amount of landscaping within the setbacks to help screen the development when viewed from the streetscape and/or adjoining properties contrary to the requirements of 3D.21.2 - objective 1.
• Contrary to the planning objective 3 in 3D.21, the basement (in part 1.4m above ground level) dominates the site causing a non-compliance with the permitted site coverage control in 3D.4.1. The "basement" is higher than one (1) metre above ground level contrary to the definition of basement in Ku-ring-gai Local Environmental Plan (Town Centres) 2010.
• The proposed layout reduces the number of units facing north to maximise solar access as required by sections 3D.14. 2 and 3D.14.3.
• The elongated building (approximately 64m) without a compliant break in the building provides an unacceptable visual mass for the residents of No. 4 and 8 Shinfield Avenue contrary to the requirements of sections 3D.2.1 and3D.7.1(i).
• The "gun barrel!' design and non-compliant eastern side setback (see section 3D.3.4) leaves fragmented areas of landscaping that are insufficient in area to enable the planting of trees of an appropriate scale to help screen the development when viewed from adjoining properties.
• The dwellings within the elongated building are forced to address the eastern and western boundaries promoting a loss of visual and aural privacy for the residents of Nos. 8 Shinfield Avenue frustrating the achievement of the planning objectives in 3D.3.
• Contrary to section 3D.20.1 concerned with vehicle access, the "gun barrel" design promotes a straight, narrow driveway necessitating a passing bay at the top of the driveway thereby reducing opportunities for further landscaping within the front setback.

2. Inadquate landscaping and undesirable impacts on the trees to be retained within the development.

Particulars:

(i) There would be a non-compliance with the required deep soil landscaped area (<30% of the site) pursuant to section 3D 5 1 of the Ku-ring-gai Control Plan (Town Centres) 2010 (KCPTC) Significant, characteristic landscaping is required to screen the development when viewed from the public domain and adjoining properties The non-compliance arises from the following inclusions in the deep soil calculation that fail to meet the definition of deep soil landscaping

• The path off the ramp to units 3 and 4 (over 1 2m in width)
• Other structures including retaining walls, intercom/letterbox, entry awning to unit 11, the stormwater pipes shown in the engineering drawings
• Other areas less than 2m in width
• The retaining wall to achieve proposed levels for the ramp/path along the western boundary and north-eastern corner of the site adjacent to unit 11 These areas would then fail to meet the minimum dimensions to be included in the deep soil calculation

(i) There would be inadequate viable deep soil landscaped areas (48% not 50%) within the front setback due to the basement protrusion into the front garden area and the passing bay More soft landscaping is required to enhance the leafy character of Shinfield Avenue and Ku-nng-gai generally (section 3D5 2 objectives 1,2, 4, 5)

(ii) The non-compliant eastern side setback fails to allow sufficient areas to plant substantial plantings/canopy trees to minimise overlooking into the adjoining property (section 3D 3 4, objectives 1,2,3,4)

(iii) To achieve the required levels in the longitudinal section plan L02/C prepared by Jane Irwin, a retaining wall would be required leaving insufficient area for deep soil planting to screen the development when viewed from No 4 Shinfield Ave

(iv) Of the three (3) proposed trees within the front setback, one (1) is located over the basement carpark (Pyrus), the other tree is proposed within two metres from the walls of the basement car park whilst the third tree would be 2 5m away from the proposed driveway (albizia) The proposed tree locations would severely hinder their ability to reach maturity

(v) The proposed Albizia julibnssin (Silk tree) (5-6m at maturity) within the front setback would be unable to screen a building (9 5m in height) when viewed from Shinfield Avenue

(vi) The proposed Angophora hispida, Eucalyptus "Summer Beauty", Acacia longifolia along the western boundary would provide insufficient height at maturity (4) to screen the elongated building when viewed from the adjoining property

(vii) The planting of Eucalyptus saligna (Sydney Blue Gum), Angophora hispida, and Corymbia maculata are considered inappropriate in the site context where 50% of the species should be locally occurring species selected from the Sydney Turpentine Ironbark Forest final determination species list

(viii) The proposed excavation and a retaining structure for the path along the western boundary will have a detrimental impact on the existing trees and shrubs to be retained T3,T10, S1 and S2

(ix) The proposed planting of Eucalyptus saligna (Sydney Blue Gum) with a mature height of 30-50m and the Corymbia maculata with a mature height of 30m within two metres of the proposed courtyards and basement is inappropriate and unsustainable

(x) The proposed retaining walls in the rear garden (approx 1 5m high) adjacent to unit 11 would be located in the tree protection zone of the trees to be retained T17, T18, T22

(xi) Tree 25 (Cedrus deodara (Himalayan Cedar) would require significant pruning, given its location within the private open space of units 6 and 7, to allow effective usage of the proposed decks and good solar access The required pruning would have a detrimental impact on its long term survival

(xii) Pursuant to AS4970-2009 - Protection of trees on development sites, the proposed building and decks would encroach into the tree protection zone of the Cedrus deodara (Himalayan Cedar) causing a detrimental impact upon this tree

(xiii) The proposed tree protection shown on the Environmental Site Management Plan would not ensure the long term survival of the Cedrus deodara (Himalayan Cedar) during construction

(xiv) Locating the above tree within the private courtyard does not provide adequate long term protection of the tree for the benefit of the entire development 

(xv) Adequate space within common areas for tree and screen planting must be provided within three metres of the rear boundary in accordance with 3D 5 3(n) in the Town Centres DCP Most of the rear setback has now been allocated to unit 11

3. Loss of amenity for adjoining properties

Particulars

(i) The non-compliant length of the building (approx 64m long) is likely to cause a loss of amenity for adjoining properties in terms of its visual mass with limited opportunities to provide substantial landscaping within the side setbacks to help screen the development from Nos 4 and 8 Shinfield Avenue

(ii) The height of the basement car park is greater than one metre above existing ground level contrary to section 3D 21 3 adding unnecessary bulk and scale to the building This non-compliance also raises the height of the decks above the basement car park promoting overlooking into the adjoining property

(iii) Due to the proposed gun barrel site layout, nine of the eleven units address the side boundaries rather than the public domain having a detrimental impact upon adjoining properties

(iv) The non-compliant eastern side setback and the large decks on the eastern side of. the building would cause a loss of visual and aural privacy for the residents at No 8 Shinfield Avenue

4. Poor amenity for future residents

Particulars

(i) There would be insufficient common open space for outdoor activities contrary to the requirements of the rule of thumb (p. 48 & 49) in the Residential Flat Design Code (RFDC). The principles and controls in the RFDC apply to design issues not specifically covered in the Town Centres DCP.

(ii) There is no soft landscaping/garden area within most of the private courtyards that is required to enhance the amenity of future residents as required by RFDC p.49.

(iii) There would be poor disabled access because:

(a) There is no lift from the car park to the adaptable/visitable units, (see performance requirements in AS4299-1995).

(b) The adaptable units (1 & 2) have no bedroom and/or room capable of being converted to a bedroom at ground floor level, (see Appendix B in AS4299-1995)

(c) The ground floor toilet in unit 2 does not comply with AS4299, Figure. 1.1 p. 9.

(d) The toilets for the visitable units fail to comply with requirements of figure 1.1 in AS4299-1995.

(iv) Four units (1, 2, 6, 7) do not receive three hours of solar access during the winter months causing a non-compliance with section 3D. 14.3. -objective 1.

(v) Only one unit has a northerly orientation to maximise solar access contrary to section 3D. 14.2 - objective 1.

5. Detrimental impact upon the streetscape

Particulars

(a) There would be insufficient landscaping within the front setback to minimise bulk and scale to the streetscape due to the basement encroachment into the front setback.

(c) The passing bay at the front of the building would also reduce the amount of landscaping within the front setback that is required to screen the development when viewed from the public domain.

6. Contaminated land

The subject site is contaminated land as indicated in part 5 of the contamination report submitted to Council with the application. The report failed to recommend a remediation strategy and to confirm whether the site would be suitable for residential purposes following remediation as required by clause 7 (1)(b) (c) in SEPP 55 - Remediation of land and Council's Contaminated Land Policy.

7. Unsatisfactory basement car park/stormwater management

Particulars:

(i) The basement car park is not located under the building footprint to maximise soft landscaping at the site contrary to the requirements of 3D.21.2 and planning objective 3.

(ii) There is no lift from the car park to the units above to assist disabled access.

(iii) A swale is proposed adjacent to the western boundary at the same level as the western courtyards and the proposed dwellings that may cause flooding within the dwellings.

8. Insufficient information/unsatisfactory plans

Particulars:

(a) Deep Soil Landscape Compliance Plan is unsatisfactory for the following reasons:

(i) It should have been provided at the same scale as the architectural and landscape plan to allow for the proper assessment of it.

(ii) It should have excluded the following:

• paving over 1.2m wide to Unit 3 and 4
• structures - retaining walls, intercom/letterbox, entry awning to Unit 11, stormwater pipes within the rear and eastern side setback as per the engineer plan.
• areas less than 2m wide
• The areas proposed to be excavated (refer Longitudinal Section Through Entry Pathway (Western Boundary) dwg L02/C and Garden Wall Section, dwg L03/C, Jane Irwin, 16/10/10) which would require a retaining wall to achieve the proposed levels for the path/ramp adjacent to the western boundary. Also, the areas in the north-eastern corner of the site less than two (2) metres in width.

(b) Proposed Landscape Plan is unsatisfactory for the following reasons;-

• Proposed plant species have not been identified in accordance with Council's DA Guide. Details of screen planting along eastern boundary need to be provided. Extent of garden beds/turf to be defined.
• Access for maintenance along the eastern boundary in the form of a stepping stone path or similar need to be provided. Proposed levels to external courtyards.
• Proposed levels to northeast corner of development is over a metre below existing levels on site and on adjoining sites (refer Garden Wall Section, dwg L03/C, Jane Irwin, 16/10/10) so a retaining structure is required but not shown on the plan.
• Top of wall heights.
• Levels shown on longitudinal section of entry pathway (Jane Irvwin, L02/C) conflicts with Western Elevation (Olsson and Assoc DA007/H). The levels indicate that the first 36m of the path is below existing ground level. Drainage swale/drainage pit levels indicate further excavation. Retaining structures would be excluded from Deep Soil Calculation and area between path and western site boundary.
• Proposed excavation within existing trees along side and rear boundary to be retained conflicts with arborist report (Landscape Sections L02, Garden Wall Section Unit 11, L03, Jane Irwin, 5.0 Guidelines for Design, Tree Audit and Impact Assessment, Advanced Treescape Consulting, 18 May 2010)
• Details of proposed fencing to private courtyards to be shown.
• Extent of suspended walkway shown as dotted tone to be shown as on grade consistent with Longitudinal section of entry pathway
• Note permitting substitution of plants to be deleted. All plant substitutions require approval from consent authority.

(c) Arborist report should be amended to include the following:

• Assessment of proposed excavated entry path instead of suspended path
• Assessment of encroachment of TPZ of all trees to be retained of the proposed works including drainage works in accordance with AS4970-2009 Protection of trees on development sites.
• Tree Protection Plan to be prepared in association with Environmental Site Management Plan

(d) An amended Basix Certificate should be submitted reflecting the changes made to the plans received at Council on 19 October 2010 as follows:

• 'common area lawn' to common area landscape in description of project.
• 'areas of garden and lawn' to dwellings in description of project

(e) Environmental Site Management Plan should be amended as follows.

• Tree protection to Tree 25 is not in accordance with the Arborist Report which requires TPZ fence to be erected to 8.1m or to the limit of available space,
• The shrubs/trees to be retained should be indicated for protection on Environmental Site Management Plan in accordance with Tree Protection Plan/Arborist recommendations.

9. Objectors' concerns

The objectors' concerns are summarised in the statement of facts. Noting that the Court is to have regard to the objectors' concerns pursuant to section 79C(1](d) and (e) of the Environmental Planning and Assessment Act, the Council contends that the proposed development should not be approved having regard to the matters raised in the submissions received by Council insofar as those matters coincide with the contentions raised in this statement of facts and contentions.

Statutory planning framework

1. The subject site is zoned high-density residential R4, under the Ku-ring-gai Local Environmental Plan (Town Centres) 2010. The particular aims of the LEP include, "(c) to provide a variety of housing choice within and adjacent to the centres."

1. The consent authority under cl 2.3 must have regard to the objectives for development in a zone when determining a development application. The objectives of the R4 zone are:

• 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.

1. In the R4 zone development that is permtited with consent includes: boarding houses; child-care centers; community facilities; dwelling houses; educational establishments; multi-dwelling housing; neighbourhood shops; places of public worship; residential flat buildings; seniors housing; and shop top housing.

1. In the LEP cl 4.3 refers to the height of buildings map. For sites less than 1800 sq m, the maximum height is 11.5 m and for sites between 1800 and 2400 sq m, the maximum height is 14.5 m.

1. The LEP floor space ratio provisions are contained in cl 4.4 and the objectives are:

(a)   to ensure that development density is appropriate for the scale of the different centres within the hierarchy of Ku-ring-gai town centres

(b)   to enable development with a built form that is compatible with the size of the name to be developed

(c)   to provide an appropriate correlation between the extent of any residential development and the environmental constraints of the site

1. The accompanying floor space ratio map shows the subject site with an FSR of 1:1, while the adjoining site zoned R3 is 0.8:1. For a site within the R4 zone, where it has a site area less than 1800 sq m, the FSR is 0.8:1 and where it is between 1800 and 2400 sq m, the FSR is 1:1.

1. Part 4 of the LEP at cl 4.6 contains 'principle development standards' provisions for exceptions to development standards:

(1) The objectives of this clause are:

(a)   to provide an appropriate degree of flexibility in applying certain development standards to particular development, and to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2) Consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3) Consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

(4) Consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Director-General has been obtained.

(5) In deciding whether to grant concurrence, the Director-General must consider:

(a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning and

(b) the public benefit of maintaining the development standard, and

(c) any other matters required to be taken into consideration by the Director-General before granting concurrence.

1. Part 6 of the LEP contains additional local provisions and cl 6.1 has particular site requirements for multi-dwelling housing and residential flat buildings as follows:

(1) The objective of this clause is 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.

(2) Despite any other provision of this Plan, development consent must not be granted for the erection of multi dwelling housing or a residential flat building on a lot in a residential zone unless the lot has one street frontage of at least:

(a) if the area of the land is less than 1,800 square metres - 23 metres, or

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

(4) Despite subclause (2), development consent may be granted for the erection of multi dwelling housing or a residential flat building on a battle-axe lot in a residential zone even if the lot does not satisfy those street frontage requirements.

1. The LEP contains a number of definitions and relevantly include:

Building height means the vertical distance between ground level (existing) at any point to the highest point of the building, including plant and lift overruns, but excluding communication devices ... and the like.

multi-dwelling housing means 3 or more dwellings (whether attached or detached) on one lot of land (not being an individual lot in a strata plan or community title scheme) each with access at ground level, but does not include a residential flat building. Landscape area means a part of the site used for growing plants, grasses and trees, but does not include any building, structure or hard paved area.

1. The Ku-ring-gai Development Control Plan (Town Centres) 2010 contains specific building type controls and general development controls.

1. The objectives of the DCP outline the outcomes that proposed developments are required to achieve.

"In order to gain consent, developments need to demonstrate that they have fulfilled the relevant objectives for each element. The design principles illustrate how the objectives may be achieved. The principles are described in diagrammatic form as well as in text and are intended to be indicative rather than controls.

The design controls demonstrate the preferred ways in which the objectives are to be achieved for improving site and building design. The controls focus on building performance -- functionality, form, layout, sustainability and residential amenity. Controls may be varied, provided that it can be demonstrated that the objectives for that particular element have been achieved. "

1. The general aims of the DCP are as follows:

(i) establish a future character for Ku-ring-gai's town centers.

(iii) the provision of a range of building types, which provide for increased housing choice ... that contribute to a sustainable vibrant community.

(iv) high-quality sustainable urban design and architectural design of buildings that have a good relationship with neighboring developments, the public domain and landscape qualities of the locality.

(vi) the promotion of the principles of ecologically sustainable development, including water sensitive urban design, climate responsive building design, energy efficiency and selection/use of building materials.

(vii) a high level of residential amenity in building design for the occupants of the building through daylight access, acoustic control, privacy protection, natural ventilation, passive security design, outdoor living, landscape design, indoor amenity and storage provision.

(ix) buildings and landscaping that are designed for all age groups and degrees of mobility.

1. Part 2A of the DCP contains provisions for St Ives Town Centre, and this allows an increase in commercial floor space of about 70% to cater for existing and future demand.

1. Multi-dwelling housing provisions are contained in pt 3D, and for site layout the objectives are:

(1)   to ensure that all developments are sensitive to site attributes, such as streetscape character, existing vegetation and topography.

(2)   to achieve a high standard of amenity for future residents and neighbours.

1. The controls include:

(1)   Site planning is to minimise as far as possible amenity impacts on neighbouring properties and on-site dwellings.

(2)   Gun barrel style developments, (with long rows of attached dwellings, long straight driveways and rows of uniform width garden courtyards) are not permitted.

(3)   At least one dwelling must address the street.

(4)   The preferred layouts for multi-dwelling housing developments are shown in diagrams. (For a site layout with 24 m frontage, shows three attached dwellings with frontage to the street and three dwellings in the rear portion of the site with three dwellings of the opposite orientation. That is, one facing the three dwellings to the front and a centre dwelling and a dwelling facing the rear boundary.)

1. The building separation objectives include:

(1)   To ensure that new development is scaled to support the desired area character with appropriate massing and spacings between buildings.

(2)   To ensure a building configuration that protects and enhances visual and acoustic privacy for occupants and adjacent residents.

(3)   To provide building form and layout that minimises overshadowing of adjacent properties and open space.

(4)   To provide building configuration that facilitates the provision of usable open space, landscaping and view corridors.

(5)   To provide building form and layout that maximises view sharing.

1. In the DCP the minimum separation up to the second storey is 3 m between non-habitable rooms and 6 m between rooms and balconies in all other cases. For the third storey, there is a 12 m between habitable rooms and balconies and 7 m between habitable room, balcony and non-habitable room and 3 m between non-habitable rooms.

1. The building set back objectives of the DCP include:

(1)   To ensure buildings are set within a garden setting dominated by canopy trees which screen the buildings and soften the urban form to maintain the garden character of Ku-ring-gai.

(2)   To ensure adequate space between sites to enable effective landscaping and tree planting.

(3)   To ensure adequate separation between buildings on different sites for privacy, sun access, acoustic control and natural ventilation.

(4)   To provide a transition between certain zones.

1. The setback controls to the street are a minimum of 10 m and for side and rear setbacks a minimum of 3 m from any side boundary and where dwellings address site boundaries, a setback must be at least 6 m. The minimum setback to the rear boundary is 6 m and basement car parking areas must be a minimum of 3 m from any side or rear boundary.

1. The building setback controls also allow encroachment for ground floor private terraces/courtyards, with a minimum setback of 8 m from the primary street and 3 m from the rear boundary, to allow for deep soil planting within the common areas.

1. Ground floor private terraces/courtyards may also encroach into the side setback, provided the deep soil landscaping requirements are met and no more than 15% of the total area of the street setback is to be occupied by private terraces/courtyards. Additional encroachments allow for eaves, sun shading devices, blades, fins and columns.

1. The site coverage objectives are:

(1)   To ensure development is consistent with the desired future built and landscape character of the area.

(2)   To protect and improve the tree canopy within Ku-ring-gai.

(3)   To provide viable deep soil landscaping within residential developments.

(4)   To minimise impervious surfaces that generate stormwater run-off.

1. The controls for multi-dwelling housing provides there must be a maximum site coverage for townhouse development of 40%.

1. The objectives for deep soil landscaping include:

(1)   To provide consolidated deep soil zones in all residential development sites through careful planning and building design.

(2)   To provide landscaping is appropriate scale context of the development.

(3)   To provide landscaping that provides habitat for native indigenous plants and animals and contributes to biodiversity in the area.

(4)   To create high-quality landscaped areas through retention and/or planting of large and medium-sized trees.

(5)   To ensure landscaping that contributes to the garden character of the locality.

(6)   To promote landscaping that minimises water use.

(7)   To ensure that most of the deep soil landscaping is within common areas.

1. The design controls are that multi-dwelling housing must have a minimum deep soil landscaping area of 30% of the site and where there is a street frontage of 30 m or less, then 50% of the front setback area is to be deep soil landscaping. The controls also require adequate space for tree and screen planting, and deep soil zones are to be provided to all side boundaries with a minimum width of 3 m along the rear boundary within the common area.

1. Sub clause 4 requires a maximum of one-third of the principal private open space area to be counted as deep soil landscaping and to maximise deep soil landscaping areas, driveways and vehicle turning areas are not to dominate the street setback zone.

1. The tree replenishment provision requires a minimum number of tall trees capable of attaining a mature height of at least 13 m on shale, transitional soils and 10 m on sandstone derived soils. For sites over 1800 sq m, the number of tall trees is calculated at the rate of 1 per 300 sq m. And at least two canopy trees must be provided in the street setback area.

1. The objectives for building facades include:

(1)   To ensure development demonstrates individual identity for each dwelling.

(2)   To promote buildings of high architectural quality that contribute to the desired local character.

(3)   To create building facades that reduce the bulk and scale of the building.

(4)   To create building facades are environmentally responsive.

(5)   To integrate building elements into the overall building form and facade design.

(6)   To ensure that building facade design contributes to the safety of the public domain.

1. The controls for attached dwellings must comply with the following:

(iv)   break buildings into separate blocks, with maximum length of 24 m

(v)   where external walls along with than 12 m, the building alignment must be stepped by a minimum 0.3 m articulation in the facade. The controls for building facades also requires that they be modulated and articulated with wall planes varying in debt by not less than 0.6 m and facades must be designed to respond to solar access with eaves and louvers

1. The provisions for building entries contain objectives:

(1)   To ensure the building entry is a clear and identifiable element in the street and is accessible to all.

(2)   To ensure the building entry contributes positively to the streetscape and building facade design. The controls include that building access shall be in accordance with the Disability Discrimination Act 1992 and all buildings must address the street with at least one entry, directly accessible and visible from the street and this must be integrated with the building design.

1. The DCP contains provisions for private open space, to ensure that it is functional and integrated into the overall design and that it provides for passive surveillance of the street, while providing safety and visual privacy for residents. The controls provide that there is to be 35 sq m of private open space per dwelling at ground floor. The provisions for dwelling depth and room sizes, is to ensure the design provides adequate amenity for occupants, in terms of sun access and natural ventilation and to provide dwellings with well proportioned and functional rooms.

1. The objectives for solar access are:

(1)   To ensure a high level of internal amenity for all occupants with direct access to daylight in all habitable rooms.

(2)   To minimise the negative impact of overshadowing on living areas and private and communal open space areas of neighbouring development.

(3)   To minimise the impact of development of existing solar collection devices.

1. The controls include that buildings must be oriented to optimise the northern aspect and dwellings must receive a minimum of three hours direct sunlight to living rooms and adjacent private open spaces between 9 and 3 on 21 June. It is noted that shadows cast by trees and fences are excluded from this calculation.

1. The objectives for vehicle access is that it is to provide well located and designed vehicle entrances that facilitate for pedestrian amenity and safety and the controls include:

(1)   Driveways must be designed to avoid a straight long gun barrel appearance, by using appropriate landscaping and variations in alignment.

(2)   Driveways must be located at least 3 m from any side boundary and be separated from the boundary by a continuous landscaped verge and screen planting.

(3)   Not more than one driveway may be established on any property with a front width of less than 20 m, not more than two driveways may be established on any other property.

(4)   On-site vehicle turning areas must be designed to permit turning in a single reversing movement.

(5)   Where a waste and recycling room is provided within the basement, the minimum finished ceiling height must be 2.6 m.

1. The objectives for car parking provision are:

(1)   To provide adequate car parking for the buildings users and visitors.

(2)   To locate and design car parking, which is integrated with the site and building design.

(3)   To ensure that garage structures do not dominate the site or the streetscape.

1. The controls for car parking design include:

• multi-unit dwelling developments must provide on-site parking within basements wherever practicable, and to maximise landscaping area, basement car park areas must be under the building footprint
• basement car parks must not project more than 1 m above existing ground level
• wherever possible, direct access to the dwellings must be provided from basement car parks to entry, garages must be integrated within the building
• the width of the garage visible from the street must not be greater than 6 m or more than 40% of the site frontage, whichever is the lesser
• the design of the garage must be in keeping with the dwellings scale, form and design and be compatible with the streetscape.

Evidence

1. When the Court met on site for a conciliation conference, a number of resident objectors attended. Their concerns can be summarised as an over development of the site that will generate more traffic. The residents are also concerned that the design of the development is uncharacteristic of the area and that it is inferior in terms of materials and finishes and it will have the appearance of a conglomeration of small boxes. Concern was also expressed that the peace and quiet of the street would be impacted with the noise from eleven townhouses.

1. The council's bundle also contained four written submissions from the properties known as No's 2B, 3, 4 and 7 Shinfield Avenue St Ives.

1. On behalf of the respondent council, evidence was given to the Court by Mrs Robin Pearson executive planner of council; Ms Jennifer Bautovich, consultant architect/town planner and Ms Tempe Beaven, landscape officer with Ku-ring-gai Council. For the applicant, evidence was given by Mr Joseph Vescio, consultant town planner; Mr Russell Olsson, architect and urban designer; Ms Jane Irwin landscape architect consultant; and Mr Russell Kingdom, arborist.

Assessment and findings

1. I have assessed the proposal, having regard to the statutory planning framework, the site inspection, and all the evidence to the court including that of the experts and residents. I have determined on a merits assessment that the proposal is worthy of approval for the reasons below.

1. The first contention raised by the Council is that the proposed site has a frontage of 23.775 m, whereas the requirement in the Town Centres LEP 2010 requires a frontage of 30 m. It is now agreed between the parties that the 30m is a development standard and amenable to a variation on written request from an applicant and this is contained in Mr Vescio's statement of evidence.

1. By way of comment only, it was rather unfortunate that half way through his final submissions Mr Leggat SC for the Council raised doubt as to whether the 30m was a development standard, or acted as a prohibition. He felt compelled to raise it as a jurisdictional matter and he referred to the Court of Appeal judgment of Agostino v Penrith City Council [2010] NSWCA 20 172 LGERA 380. He submitted that the approach taken by the planners to cl 6.1 on the 30m standard, may not be correct, although he could not assist the Court as to the proper construction. On reconsideration, he then submitted that "the council wishes to make a concession for the purposes of this case." Given that Mr Leggat raised a basic jurisdictional point that I was without power to determine the matter, I considered it inappropriate to make a concession for this case and if a jurisdictional point is raised it must be dealt with fairly and squarely. Mr Leggat submitted that the law operates on a case-by-case basis. However it seems to me this goes to the merits of an application assessed against the legal framework. In other words, I stated that I cannot make a concession on the statutory planning framework for one case if I do not have jurisdiction as clearly this would be erring in law to do so. Indeed in initially raising the matter Mr Leggat submitted "this is a legal point and if there is no jurisdiction the Court cannot purport to grant consent". Following further discussion, Mr Leggat stated that: "council's present view is that cl. 6.1 is a development standard and amenable to cl 4.6 in the LEP and as such in the circumstances, the application can be assessed on its merits." As such there is no jurisdictional impediment to me determining this application.

1. I now turn to the objection submitted on behalf of the applicant to vary the minimum frontage. The 30m standard is contained in clause 6.1 of the LEP and this frontage is required for sites where the area of land is 1800 sq m or more. The subject site has an area of 1942 sq m, that is 142 sq m above the 1800 sq m. While the site is only 8% larger than a site requiring a 23 m frontage this in itself does not justify a variation and in my consideration of a variation I must assess the application focusing on the LEP provisions including the purpose of the standard in cl 6.1 and the mechanism for a variation in cl 4.6. I note at cl 1.9, certain State Environmental Planning Policies to not apply, including SEPP 1, nonetheless, cl 4.6 as in paragraph 12 above requires a similar approach to vary a standard with the objectives of the clause to provide for flexibility, and to achieve better outcomes by allowing flexibility in particular circumstances.

1. On the question as to whether the development standard is "unreasonable or unnecessary in the circumstances of the case" Mr Vescio states that attempts have been made to acquire the adjoining property at number 4, and 2A/2B. In Mr Vescio 's opinion "the proposal is not an over development, and does not crowd the site with buildings, rather the buildings are subservient to the landscape. If the site was amalgamated with properties to the west a consolidated site could contain a building with a much greater floorspace ratio and a height of 17.5 m, presenting greater bulk and mass ... Given that the site is located at a zone interface, and adjoining a well-established lower scale development, a smaller frontage, with hence smaller building in footprint and volume provides a respectful and sympathetic transition between the lower density and higher density". I agree with Mr Olsson's Statement of evidence that "the existing character of the area is better maintained by the erection of individual developments, which allows for greater landscape curtilage". Mr Vescio states that "the variation to the 30 m standard better fulfils the planning objective of maintaining the character of the area as opposed to a scenario of an amalgamated site". The Council does not contend that the proposal will isolate the adjoining R4 land to the west.

1. The objectives or purpose of the 30 m street frontage development standard in cl 6.1 is "to provide, for the orderly and economic development of residential land, while maintaining the local character". In my assessment these objectives are satisfied, and I am persuaded by the evidence of the applicant. I accept that the proposal for the development of this site provides not only a desirable transition but a better outcome for this site in the context of the Pemberley Grove seniors development and the future and current dwelling on the high density R4 sites to the west. I do not accept the respondent's expert evidence that "the narrow frontage is not wide enough for the majority of units to address the street" because for example for a 30 m site frontage and 60 m in depth with a site area of 1800 m, it is highly unlikely to result in a development where the majority of units address the street. Furthermore the DCP only requires "at least one dwelling to address the street" and the proposal has two dwellings.

1. In my assessment I accept the applicant's experts evidence and the proposed development is orderly and economic in the context of the site being at a zone interface where the maximum density is not always achievable, and the proposal provides an appropriate built form and transition. Furthermore as required by cl4.6 (4)(ii) the proposal is consistent with the objectives of the zone set out above to provide housing needs of the community, and a variety of housing types within a high-density residential environment. Furthermore, the development of this site will not isolate or prejudice the orderly and economic development of the R4 sites to the west.

1. In terms of clause 4.6(5) I am also satisfied that contravention of the 30 m standard does not raise any matter of significance for state or regional environmental planning and public benefit of maintaining the standards is not undermined in the circumstances of this case. And there are no other matters requiring my consideration before allowing the standard to be varied.

1. Pursuant to the provisions of cl 4.6(3) I am satisfied the request for variation of the 30m frontage is justified and (a) "compliance with the development standard is unreasonable or unnecessary in the circumstances of this case", and (b) "there are sufficient environmental planning grounds to justify contravening the development standard". The request for variation I am satisfied is well founded on the evidence to the Court and should be allowed.

1. In some respects my consideration of the variation to the 30m frontage standard coincides with my overall merits assessment of the application and I accept Mr Olsson's evidence that the built form not only provides for an appropriate transition, but it also provides a good level of amenity for future occupants of the development and for adjoining properties. The requirement of the development control plan for buildings to be oriented to optimise the northern aspect must be considered in the context of a holistic reading of the DCP and its provisions. I am satisfied that the solar access for units with dual access to the east and west is an appropriate outcome and achieves more than satisfactory choice of solar access. This dual orientation also provides for cross ventilation and the depth of units meets the rules of thumb of the residential flat design code .

1. The second contention raised by the council is inadequate landscaping and impacts on trees. During the proceedings, the landscape experts and the applicant's arborists provided concurrent evidence and the deep soil area landscaping is calculated at some 34% of the site and this satisfies the 30% standard contained within the town centre's LEP . For the front setback area, the deep soil area in use 55.6%. I am satisfied that with the details now provided to the Court that the proposal will sit within a garden setting with canopy trees and other levels of landscaping consistent with the character of the area. In my assessment of the evidence the setbacks to all boundaries provide appropriate deep soil zones and levels to support the desired landscape outcome required by the DCP set out in paragraphs 29 - 32 above. The presentation of the building to the street will be within a landscaped setting to filter the view of the proposal and provide canopy trees, Angophora Costata and Manchurian pear, to make a positive contribution to the streetscape. The deodorus will also continue to make a contribution to the canopy of the locality and appropriate conditions are accepted by the applicant for its retention.

1. The contention raised by the council about the loss of amenity for adjoining properties that is Pemberley Grove at no.8 and the dwelling house at number 4 Shinfield Avenue I have carefully assessed with the benefit of the evidence. The relative levels of the adjoining dwellings in Pemberley Grove and their open space areas and those of the proposal in terms of maximum height, between 9.5 and 10 m including where the basement protrudes, the design of the terraces and privacy mechanisms and with the distance separation I am satisfied will not create unreasonable impacts and the built form of a multi-unit town house development provides an appropriate relationship for both the future residents of the proposal and the existing residents of No.8. Similarly I am satisfied that the proposed built form provides for the maintenance of amenity for the existing dwelling at No.4 and it will provide an appropriate transition to the site when redeveloped. Furthermore while not relied on to provide privacy at the same time the side boundary landscaping will provide a consistent garden setting to the benefit of all properties.

1. The east-west orientation of eight of the dwellings does not represent a gun barrel development and the length of the elevations in the circumstances of this case is an acceptable resolution that does not create adverse impacts on the neighbours or streetscape. The 66m length would be difficult to perceive and is well articulated and modulated and has appropriate landscaped setbacks. The built form also provides for a good neighbourly development having regard to its context without adverse impacts.

1. The contention raised about poor amenity for future residents, refers to insufficient common open space and a lack of soft landscaping within private courtyards/terraces. I accept the applicant's evidence that the private open space for each of the dwellings provides a useful size and area within a landscaped setting where the built form does not dominate. The issue of disabled access is resolved by the condition that requires a lift to be provided when constructed and an adjustment to levels for access and paths.

1. I have made the DCP guidelines a fundamental focus for my merits assessment of the elements. The structure of the DCP is that outcomes are to be achieved with the design controls the preferred way, however, the controls focus on building performance -"functionality, form, layout, sustainability and residential amenity". For the question of solar access I am satisfied that the development receives adequate solar access and the experts agreed the 70% rule of thumb in the RFDC is the appropriate test. The dual orientation as opposed to a northerly aspect in the circumstances of this case provides for an appropriate outcome. Dwellings 1, 2, and 7 will receive 2 hours and the remainder will receive 3 hours or more and all receive solar access to open space areas.

1. The council raised the contention that the proposed development would have a detrimental impact upon the streetscape because of insufficient landscaping in the front setback area to minimise bulk and scale and a basement encroachment into the front setback area, together with a passing bay that would reduce the amount of landscaping within the front setback to screen the development from the public domain. As above I have concluded that the landscaping is appropriate and satisfies the outcomes.

1. In my assessment the encroachment of the basement in the front and side setbacks will not impede the desired outcome of a development in a garden landscaped setting with more than the required space for and number of canopy trees. The passing bay together with the side driveway to basement parking will not dominate in the overall landscaped presentation and would not be a reason for refusal. The basement parking also satisfies the DCP so garaging does not dominate the streetscape.

1. The issue of contaminated land is resolved by a condition of consent.

1. For contention 7 the only remaining matter not dealt with above is the swale proposed and the applicant tendered a letter from an engineer that there will be no flooding of the western courtyards and this is not contested by the respondent.

1. The contention of insufficient information and unsatisfactory plans has been addressed through further information and plan details and landscape specifications. I am satisfied on the basis of all the evidence to the Court that the proposed development has been well resolved.

1. Of the objectors concerns I appreciate that residents will not always embrace change but the role of the Court is to assess a development proposal in the context of the statutory planning controls and guidelines and in my assessment above I have determined that the proposal is consistent with the Town Centre LEP and zone objectives and the desired outcomes expressed in the DCP.

1. In my overall merits assessment the proposal before the court is well designed and warrants approval. The built form is appropriate for this site with a zone boundary interface and the proposal provides appropriate amenity for future and adjoining residents.

Or ders

1. Accordingly, based on my assessment above, the formal orders of the Court are:

(1)   The appeal in respect of the property known as 6 Shinfield Avenue St Ives is upheld.

(2)   The development application submitted to Ku-ring-gai Council and as amended for a multi-unit development comprised of eleven dwellings and 23 basement parking spaces is determined by the granting of consent, subject to the conditions in annexure 'A'

(3)   The exhibits are returned to the parties, with the exception of: 1, A, M, O and P.

J S Murrell

Commissioner of the Court

Annexure One

Shinfield Ave - Figure One

Shinfield Ave - Figure Two

Shinfield Ave - Figure Three

Shinfield Ave - Figure Four

Shinfield Ave - Figure Five

Decision last updated: 02 May 2011