Meadowcorp Developments Pty Ltd v Ku-ring-gai Council

[2003] NSWLEC 396

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Land and Environment Court

of New South Wales

CITATION:	Meadowcorp Developments Pty Ltd v Ku-ring-gai Council [2003] NSWLEC 396
PARTIES:	APPLICANT Meadowcorp Developments Pty Ltd RESPONDENT Ku-ring-gai Council
FILE NUMBER(S):	10763 of 2003
CORAM:	Nott C
KEY ISSUES:	Development Application :- Demolish existing buidings and erect a detached dual occupany- appearance in the streetscape - character
LEGISLATION CITED:	Environmental Planning and Assessmemt Act 1979 State Environmental Planning Policy No. 53
CASES CITED:
DATES OF HEARING:	01/12/2003
EX TEMPORE JUDGMENT DATE :	12/01/2003
LEGAL REPRESENTATIVES:	APPLICANT Mr J S Wheelhouse, barrister SOLICITOR Terrence W Riley RESPONDENT Mr W O'Rourke, solicitor SOLICITORS Deacons

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10763 of 2003

Nott C

1 December 2003

Meadowcorp Developments Pty Ltd
Applicant
v

Ku-ring-gai Council
Respondent

Judgment


1 . This is an appeal against the council’s deemed refusal of a development application to demolish an existing single-storey dwelling and swimming pool at 6 Bangalla Street, Warrawee, and to erect a dual occupancy containing two detached dwelling houses each having a new swimming pool.

2 . Following a number of considerations of the application by the council and in accordance with a recommendation of Mr B Banning, development control officer, the council resolved to grant development consent subject to a whole series of conditions, two of which originally were in issue. However, one of those conditions has now been agreed to; that condition requires the rear proposed dwelling to be moved a further 1.5 m from the southern boundary so as to reduce the overshadowing impact on 17 Harrington Street.

3 . The other condition which is in dispute required the first floor to be deleted and redesigned as an attic roof form. The condition went on to require in effect that the ridge be reduced by approximately 1.2 m and that the pitch of the roof be maintained at 25 degrees. The effect of such a condition would be to leave at large the form of development that could be constructed, and it is not the sort of condition that the Court would impose. It was agreed by the parties that such a condition was tantamount to refusal.

4 . Besides the evidence of Mr B Banning for the council, there was expert evidence for the applicant from Mr R Stass, heritage architect, and from Mr A Minto, town planner.

5 . The development which is proposed may be seen in more detail in the architectural plans, exhibit A, and in the landscape plans, exhibit B.

6 . The subject site is gently sloping with a slope towards the street, and appropriate drainage will be able to be provided in accordance with conditions of consent and drainage plans prepared on behalf of the applicant.

7 . In addition to the architectural plans of the dwelling houses that are proposed, there were detailed plans relating to each of the proposed swimming pools which will be ancillary uses to the dwelling houses. The pool plans are exhibit C.

8 . This proposed development being a detached dual occupancy is permissible with consent under State Environmental Planning Policy No — Metropolitan Residential Development . There are development standards set out in cl 19 of SEPP 53 for a detached dual occupancy. There is a requirement that the land area be 600 m2 or more. The proposed development has an area of 2,161 m2. Another development standard in cl 19 is that the floor space ratio should be 0.5:1 or less, and the proposed development is well under that standard as it has an FSR of 0.4:1.

9 . The issues in the hearing before me relate to certain design principles in cl 32. I will read the relevant parts of cl 32:

32. Design of residential development
Consent must not be granted for development to which this Part applies unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the following principles:

(a) Streetscape: the proposed development should:

(i) contribute to an attractive residential environment with clear character and identity …

(h) Visual bulk: the proposed development should where practicable maintain reasonable neighbour amenity and appropriate residential character by:


(a) providing building setbacks that progressively increase as wall heights increase to reduce bulk and overshadowing, and

(b) using building form and siting that relates to the site’s land form, and

(c) adopting building heights at the street frontage that are compatible in scale with adjacent development.

10 . On the one hand, Mr Banning considered that the proposed development was out of keeping with the predominant residential character in the locality, whereas the experts who gave evidence for the applicant considered that the proposal in terms of cl 32 was an appropriate form of development worthy of approval.

11 . In considering all the evidence and submissions, I have been aided by a view of the site and locality. It seems to me that the proposed development will, as Mr Stass says, contribute to an attractive residential environment with clear character and identity. A photomontage in colour is set out at p 8 of Mr Minto’s statement which gives an impression of the proposed front house in part of the streetscape. It could be noted that there is a large tree near the north-eastern corner of the subject site that will be retained, as well as some trees to the side of the proposed house on the eastern side, together with additional landscaping that will be required in accordance with exhibit B.

12 . Towering above the proposed house is a large spruce tree immediately behind the south-eastern corner of the house. In the front of the house, a Jacaranda tree will be retained on the western side of the entry to the house.

13 . The setback to the garage and to one smaller part of the ground-floor element of the front house is 9.5 m with additional setback to 10.5 m of the main wall by the side of a porch. Some criticism was made of this porch which in effect is a portico with a covered roof. But when one looks at the plans that are exhibit A and the montage it can be seen that the portico is a light-weight feature with a relatively deep recess to the front walls at the foyer entry and to the upper part of the walls and it is not a large element. It is not a drive through portico, but it is merely an identifying feature more or less centrally located in the proposed building.

14 . At the upper level of the proposed front building, there will be additional setbacks particularly towards the front north-western corner. As well, there are large setbacks of the upper level generally from the side walls of the house, and in this regard I consider that the residential amenity of adjoining properties will be adequately protected.

15 . In the council’s evidence it was emphasised that the adjoining house at No. 8 is single storey and that on the other side at No. 4 there is a single-storey large house and a garage with an attic above it in a fairly steep roof. However, at No. 8 subdivision approval has been granted and apparently there is an approval for a building of single-storey construction at the front with an attic floor above. I have not seen the plans for that however.

16 . I should also mention as was highlighted by the witnesses for the applicant that on the southern side of Bangalla Street, where the subject site is located, there are large two-storey buildings further removed at Nos. 2, 2A and 2B. Closer to the subject site or at least more visible, when one looks at the subject site from the street, is a large two-storey house on the corner of Davidson Street and Bangalla Street. Opposite the subject site are generally single-storey dwelling houses with large setbacks from the street.

17 . Where practical the building setbacks should progressively increase with wall heights to reduce bulk and overshadowing as required by cl 32(h)(a) of SEPP 53. I have already described those setbacks. I am of the opinion that with the landscaping that is proposed, the setbacks have regard to that principle insofar as there will be a reduction in bulk and also overshadowing. I should mention also in relation to the photo-montage that all the landscaping proposed is not indicated in the montage, and in particular it is proposed to have a dense hedge of Magnolia grandiflora (“Little Gem”) at the front of the site.

18 . As regards par (c) of cl 32, it is important to note that the building heights at the street frontage should be compatible in scale with adjacent development, not necessarily the same. If the proposed development involved a garage which was visible on one part of the site above which was a two-storey element, I consider that such a development would clearly not be acceptable. The proposed development though is close to natural ground at the front ground-floor level. In my opinion the proposed development with its landscaping would be compatible with adjacent development ( “adjacent development” is not limited to immediately adjoining development).

19 . In coming to the view that it is appropriate to grant development consent subject to conditions, I have also had regard to the dual occupancy development control code recently adopted by the council. The comment I would make, insofar as there is a variation in the general setback of the proposed development from most other dwellings in the immediate locality of Bangalla Street, is that it is to be expected that with a different form of development, namely dual occupancy, there will usually be some differences between having a single dwelling erected on a parcel of land and a dual occupancy. One must have regard to the objectives and aims of SEPP 53 in considering the clear character and identity that will result. In my opinion, the setbacks of 9.5 m to 10.5 m at the ground-floor level and similar or greater setbacks at the upper level of the front house are acceptable.

20 . Residential Development Control Plan No. 38 relates to single dwelling houses. It does not apply to the proposed development. However, in respect of the envelope and height of the front house, there would apparently be compliance with DCP 38.

21 . Overall, looking at the matter under s 79C of the Environmental Planning andAssessment Act1979 , I propose to grant consent subject to conditions.

22 . Accordingly, the orders of the Court are:

(1) The appeal is allowed.
(2) Development consent is granted for the demolition of the existing buildings and for the erection of a dual occupancy at 6 Bangalla Street, Warrawee, subject to the conditions in Annexure A hereto. [Annexure A now contains the “slip rule” amendments made on 22 December 2003.]
(3) The exhibits, other than exhibits 1, A, B and C, E, and 3 may be returned.

___________
A J Nott
Commissioner of the Court