Meadowcorp Developments Pty Ltd v Ku-ring-gai Council

[2003] NSWLEC 371

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Land and Environment Court

of New South Wales

CITATION:

Meadowcorp Developments Pty Ltd v Ku-ring-gai Council [2003] NSWLEC 371

PARTIES:

APPLICANT
Meadowcorp Developments Pty Ltd v Ku-ring-gai Council

RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):

10766 of 2003

CORAM:

Hoffman C

KEY ISSUES:

Development Application :- Deemed refusal for proposed demolition of the existing dwelling and construction of a detached dual occupancy and two swimming pools - streetscape - solar access - setbacks - would the designs fit in with other houses in the street

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No. 53

CASES CITED:

DATES OF HEARING:

02/12/03, 04/12/03, 5 December 2003

EX TEMPORE
JUDGMENT DATE :

12/09/2003

LEGAL REPRESENTATIVES:

APPLICANT
Mr J S Wheelhouse, solicitor
SOLICITORS
J Terrence Riley

RESPONDENT
Mr R K Graham, barrister
SOLICITORS
Abbott Tout

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES


10766 of 2003

Hoffman C

9 December 2003

Meadowcorp Developments Pty Ltd
Applicant
v

Ku-ring-gai Council
Respondent

Judgment


1 . This was a class 1 appeal No. 10766 of 2003 between Meadowcorp Developments Pty Ltd and Ku-ring-gai Council in regard to the refusal of a detached dual occupancy proposal at 10 Gilda Road, Wahroonga. The lot has an area of 1343 m2 and sloped down from the road along the length of the Lot about 4.6 m. On the west side was the battleaxe drive to No. 12, which was behind No. 10. Number 10 had a right of way over the drive and proposed to use the first part of it as the footpath crossing to house No. 2 of the proposal. Its drive went off the right of way just inside the street boundary and there was a manoeuvring area in front of the double garage and a turnaround to allow entry and exit in a forward direction. West of the right of way was 14 Gilda Road slightly down the hill of the site with a single-storey house with garage under.

2 . House 1 was next to 8 Gilda on the east. Number 8 was single-storey at the front and two-storey at the rear. Both the houses in the proposal were two-storey at the front and single-storey at the rear. House 1 had its own vehicular footpath crossing and a similar manoeuvring area to house 2. Each house had some existing trees in the front yard to be retained and some removed. There was to be a hedge and other vegetation planted at the street boundary to screen a north facing courtyard accessed by French doors off the living room of each house. Each had another set of French doors from dining rooms to an eastern side courtyard. The dining room and living room opened into each other in each house.

3 . At the rear of each house was an open plan kitchen/family/rumpus room and a back deck on top of the stormwater detention tank. Then there was a back yard and swimming pool for each house separated by a fence and vegetation from each other and from No. 12 Gilda.

4 . Because the rear sections of each house were single-storey, no windows faced towards No. 12 Gilda on the upper level. At the front of the house, the second-storey stepped in from the ground floor footprint and so the ground floor had part pitched tiled roofs at the ground floor ceiling level and the upper roofs were hip tiled roofs.

5 . The application had been made under State Environmental Planning Policy 53 for Metropolitan Residential Development. The issues were:


(1) This issue was deleted.

(2) The application fails to satisfy cl 32(a) of SEPP 53 as the development through its siting and design, does not give adequate regard to the principles of streetscape.

The application also fails to address the heritage values of the site, which is within a National Trust Urban Conservation Area and was reviewed under Council’s 2000 Heritage Report.

(3) The applicati on fails to satisfy cl 32(b) of SEPP 53 as the development does not give adequate regard to the principles of visual and acoustic privacy.

Particular concerns relate to the location and level of the pools and lack of information regarding boundary treatments and landscaping.


(4) The application fails to satisfy cl 32(c) of SEPP 53 as the development does not give adequate regard to the principles of solar access and design for climate, particularly in relation to adequate sunlight to substantial areas of private open space of each proposed dwelling.

(5) This issue was deleted.

(6) The application fails to satisfy cl 32(h) of SEPP 53 as the development does not give adequate regard to the principle of visual bulk. Of concern are impacts on the residential character and neighbour amenity arising from the street setbacks and floor levels of the buildings relative to natural ground form.

(7) Insufficient information has been provided to demonstrate that due regard has been given to heritage matters in terms of the loss of the existing dwelling, and the suitability of the siting and design of the replacement buildings for this site, which is in a National Trust Urban Conservation Area and is also identified as having a ‘Special Character’ in the Godden MaKay Logan Study.

(8) Insufficient information has been provided to demonstrate landscaping of the site in a manner to achieve adequate levels of privacy and amenity to adjacent sites, and ensure the development contributes to the landscaped character of the locality.

(9) The siting and design of the development fails to achieve objectives 1(a), 1(b), 2(b) and 2(e) of the Ku-ring-gai Planning Scheme Ordinance .

This circumstance arises from the inappropriate location and size of the dwellings, the location and levels of the pools, and the lack of information regarding boundary treatments and landscaping.

(10) The development fails to comply with the following provisions of council’s adopted Dual Occupancy Development Control Code:
Clause 4.3.1 Visual Privacy, as a consequence of the location and levels of the pools.
Clause 4.3.2 Acoustic Privacy, as a consequence of the location and levels of the pools.
Clause 4.4.1 Solar Access, as a consequence of the lack of solar access to living rooms of both buildings and lack of solar access to outdoor living rooms/open space.
Clause 4.4.2 Energy Efficiency, as no NatHERS Certificate is provided.
Section 4.5 Stormwater, as entitlement to drainage to the nominated easement has not been demonstrated.
Clause 4.9.1 Setbacks, as the siting of the building fails to comply with the relevant front and side setback controls.
Clause 4.9.6 Cut and Fill, as the design of the buildings require sub-floor areas exceeding 900 mm above natural ground level
Section 8 Heritage, as no consideration has been given to the location of the site being within a National Trust Urban Conversation Area, or being of ‘Special Character’ in the Godden MacKay Logan study.

(11) Circumstances of the Case.

(12) The public interest.

6 . The site was in the Residential 2c Zone under the Ku-ring-gai Planning Scheme Ordnance and the proposal was prohibited. SEPP 53 overcame that prohibition. Although the Council’s Development Control Plan was introduced in the respondent’s evidence on the merit issues, the council recognised the supremacy of SEPP 53 as the determining instrument in this appeal. The Court heard the respondent’s evidence from:

• Mr S Johnson, architect,
• Mr L B Doyle, town planner,
• Mr J B Johnson, objector and resident of 5 Gilda Road, diagonally across the street from the site,
• Ms J L Florey, objector and resident of 8 Gilda Road on the east of the site adjacent house 1,
• Mrs E Taylor, objector and resident of 12 Gilda at the rear of the site.

7 . Other objections and written submissions were tendered.

8 . The applicant’s evidence was heard from:

• Mr A J Minto, town planner, and
• Mr R M Staas, heritage architect.

9 . Some amended plans were tendered during the hearing without objection by the respondent. In summary they provided a relocation of the swimming pools, information on landscaping of the whole site, information on fencing of the whole site, information on shadows and the north and east facing courtyards off the dining and living rooms and the French doors for access to them from the interior. There were also NAHERS certificates presented and a plan showing the relevant setbacks of the proposal and the adjacent houses. There were expert reports and drainage details in exhibits E1 and E2 by Trevor Leask, engineer, but he was not required for cross-examination.

10 . The main issues were summarised by the parties as:
1. did the proposal fit into the streetscape and character of Gilda Road;
2. did the proposal have adequate solar access; and
3. was the visual bulk excessive due to:
(a) inadequate building setbacks from the street and from one another,
(b) the building form and siting, and (c) the building height.

11 . The residents had objections based on these same aspects, with additional concerns of Mrs Florey about the loss of a Gordonia tree on the east boundary of the site that provided a pleasant outlook from her western windows, and if retained would give screening between the houses.

12 . Mrs Taylor’s additional concerns were:

(a) the height of the back fence to be erected for the two houses and its appearance from her house;
(b) the bulk of the proposed buildings up hill from her;
(c) the potential shadowing of her house and yards;
(d) the loss of trees and privacy due to the swimming pool and activity areas at the rear of the houses adjoining her land;
(e) the effect on her driveway, which was the shared drive with the subject site, because the boundary of the site was partly in the drive and the drive would have to be narrowed and she feared it would mean her water meter and power supply would have to be relocated and the driveway widened on its west side at her cost.

13 . Dealing with the evidence as it was revealed, the driveway would not have to be widened on the west side. It already exceeded the council’s required width and would remain so when narrowed. As a result, the services to Mrs Taylor’s would not have to be relocated.

14 . True there was a loss of trees on the site but substantial landscaping was proposed to replace and supplement.

15 . The swimming pools and related terraces on houses 1 and 2 were adjusted in exhibit D to ensure people could not look over the back fence towards No. 12 and screened vegetation was to be planted. The evidence showed the fence on the boundary with No. 12 was not excessive in height, given the terrain, and ranged between 1.8 m and 2.4 m where a small log retaining wall was needed. A similar fence could be erected in that location even if a single house was erected on the site - it was reasonable.

16 . The applicant stated it would bear the full cost of all fencing without seeking the half of the cost normally shared by neighbours.

17 . In considering the comparison of the proposal with a single house that would be permitted on the site, such a house could have a floor-space ratio of up to 0.5:1 and a built-upon area of 60% of the site under the council’s controls and up to 8 m high. The proposal with both houses had a floor-space ratio of just under 0.5:1 but covered only 50% of the built upon area. The minimum site area for a detached dual occupancy was 600 m2, so the proposal at 1343 m2 was more than double the minimum. Also its height was below the council maximum and in fact each house fitted well within the council’s building envelope controls for houses that might be built adjacent one another. So, even under the council’s controls, the proposal was considerably less than the maximum for a single house on the site.

18 . It complied with the numerical requirements of State Environmental Planning Policy 53 . It was the qualitative matters that were of concern. Even the objectors agreed that two-storey houses on the subject site was acceptable; it was the design of the proposal that was objected to.

19 . In the evidence about the design it was shown that very little shadow from the proposal would leave the site even in mid-winter. The design of both houses, having a single-storey at the rear, had enabled this to happen. Mrs Taylor’s house would have no impact from shadows and it was only her driveway that would have some shadow cast on it and that was acceptable. The design, having no windows at the second-storey of either house facing No. 12, would vastly improve Mrs Taylor’s privacy of which there was none at present due to the large windows on the existing house in No. 10, looking directly at her bedroom and living room windows.

20 . Heritage matters had been raised about the house on No. 10 and the streetscape. The Court was satisfied that the existing house was not a heritage item under the relevant statutes nor was it in a conservation zone. The National Trust had placed some value on Gilda Road streetscape but that had not gained the support of the Ku-ring-gai Council or the State Government.

21 . The Court accepted the evidence of Mr Staas that the street was an eclectic mix of one and two-storey houses, and even one three-storey house of varying periods and styles, with varied street-front setbacks. The dominant feature of the streetscape was the huge trees in both the road reservation and the private properties.

22 . The existing trees in the front setback of the site formed an almost complete screen to the existing house. When some were removed, the proposal would be more visible but no more visible than many of the houses in the street and less visible than some.

23 . The setbacks of the two houses were offset due to the shape of the allotment. The minimum front setback at the north-east corner was 9 m and at the north-west corner 11.7 m. In this part of Gilda Street, and in juxtaposition to the immediate neighbours of the site, this arrangement fitted in. The council’s minimum front setback for a single new house on the site was 9 m, and that may have been without any offset; so the proposal more than complied in that regard also.

24 . The style of the houses was a little different to the others in the street but there was no uniformity of design style in the street as previously mentioned. The design of house 1 and house 2 could be described as traditional. The proposed houses used brick and tile and some rendered and painted walls and hip tiled roofs. These materials were similar to the other houses in the street and to that extent would be a good fit. It seemed to the Court that, given all these considerations, it could not be said the proposal had bulk and height that would be unacceptable in the streetscape.

25 . In terms of separation of the houses, to avoid them appearing as a single block of building, the offset plans helped. The subtle location of proposed shrubs and trees and the fact that the second storeys were about 5 m apart, the ground floors being 3 m apart, gave the proposal about the same separation as between many of the houses in the street but less than some. House 2 also stepped down the hill slope from house 1, and house 1 was downhill from 8 Gilda, giving vertical separation as well as retaining the streetscape pattern of the houses stepping down the topography in a westerly direction. The photomontage in exhibit 14 was shown to be in error in that it showed the houses too high relative to the footpath level. The houses as designed would appear lower in the streetscape.

26 . Another major benefit was that Nos. 10 and 12 Gilda had originally been two lots, with a combined frontage of 39 m, which was almost double the frontage of other lots in the street. Number 12, when it became a battleaxe allotment, had only a driveway frontage and that would appear in the streetscape as the driveway for house 2. The two proposed houses had a frontage of nearly 18 m each. That did not interrupt the rhythm of house forms and spacing along the street. They would create greater continuity in fact, while the existing house on No. 10 did not in that sense.

27 . The Court was satisfied the two proposed houses would contribute to an attractive residential environment and have a clear character and identity that would not be out of place in the eclectic mix of ages of styles of other houses in the street.

28 . The applicant had obtained a NAHERS assessment for the proposal and had achieved 4.5 stars and 4 stars ratings, when 3.5 stars was the minimum under the council’s controls.

29 . The visual and acoustic privacy of neighbours was protected to the normal level one would expect in a suburban situation.
30 . The provision of good solar access to each house was proven, given that the lounge and dining rooms and their associated private open spaces in the north and north-east sides would get excellent sunlight, even in midwinter. The other family rooms and kitchens, being at the rear, was a reasonable arrangement for the summer months, when the use of the swimming pools would occur and require surveillance.

31 . The drainage details and easements being shown in exhibits E1 and E2 were not cross-examined and are therefore considered to be reasonable. Stormwater detention on-site would minimise run-off.

32 . The cut and fill involved in the proposal was not excessive and was to be modified on the east side of house 1. to protect the Gordonia tree on the boundary with 8 Gilda, as annotated on the drawing of house 1 in exhibit A. The landscape plan in exhibit D would also require amendment to prevent disturbance of the tree’s roots.

33 . Overall, there was compliance with SEPP 53 and there was no reason sufficient for the refusal of the proposal. The applicant offered to amend the plans of house 1 and to accept the condition to retain the Gordonia on the boundary with No. 8 Gilda. The Court includes in the conditions the undertaking by the applicant to erect boundary fences and retaining walls at no cost to the neighbours.

34 . Therefore the orders of the Court are:

1. The appeal is upheld.
2. Consent is granted to two(2) detached duplex houses under State Environmental Planning Policy No. 53, to be erected at No. 10 Gilda Road, Wahroonga, as shown on the annotated drawings in exhibits A, B, C, D, E1 and E2, all as amended by and in accordance with the conditions in Annexure ‘A’ hereto.
3. The exhibits be returned to the parties except exhibits A, B, C, D, E1, E2, N, 6, 11, 12 and 14.
_______________
KG Hoffman
Commissioner of the Court
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