Northeast Homes Pty Limited v Ku-ring-gai Council
[2005] NSWLEC 558
•10/12/2005
Land and Environment Court
of New South Wales
CITATION: Northeast Homes Pty Limited v Ku-ring-gai Council [2005] NSWLEC 558
PARTIES: APPLICANT:
Northeast Homes Pty Limited
RESPONDENT:
Ku-ring-gai CouncilFILE NUMBER(S): 10771 of 2005
CORAM: Watts C at 1
KEY ISSUES: Development Application :- Streetscape and visual impact
LEGISLATION CITED: Ku-ring-gai Planning Scheme Ordinance, (KPSO) as amended by Local Environmental Plan 194, (LEP194)
Development Control Plan 55 Ku-ring-gai Multi-Unit Housing - Railway/Pacific Highway Corridor and St Ives Centre, (DCP55)
Development Control Plan No 47 Water Management Plan, (DCP47)
Development Control Plan No 43 Car parking, (DCP43)
Development Control Plan No 40 Construction and Demolition Waste Management, (DCP40)
Environmental Planning and Assessment Act 1979, ss79C and 97CASES CITED: Stockland Development Pty Limited v Manly Council [2004] NSWLEC 472;
Zhang v Canterbury City Council (2001) 115 LGERA 373 Red Sea Investments Pty Limited v Ku-ring-gai Council [2005] NSWLEC 380DATES OF HEARING: 29/09/2005 and 30/09/2005
DATE OF JUDGMENT:
10/12/2005LEGAL REPRESENTATIVES: APPLICANT:
RESPONDENT:
Mr S Kondilios, solicitor
SOLICITORS:
Maddocks
Mr P Marincowitz, solicitor
SOLICITORS:
Phillips Fox Lawyers
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Watts C
12 October 2005
10771 of 2005 - Northeast Homes Pty Limited v Ku-ring-gai Council
JUDGMENT
1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Ku-ring-gai Council (the council) of a development application to demolish the existing structures and to erect a residential flat development comprising fifteen (15) units at Nos 1203-1209 Pacific Highway, Turramurra, being Lot A, DP 185717 (No 1203 Pacific Highway, Turramurra), and Lot 12, DP 8442 (No 1209 Pacific Highway, Turramurra).
2 I visited the land in company with the parties on the morning of the hearing.
3 I have concluded that, on merit, the application should succeed when considered under s 79C of the Environmental Planning and Assessment Act 1979.
The land
4 The land is situated northeastern side of the Pacific Highway, on the corner of Womerah Street. It is triangular in plan and has a 66.746 metre frontage to the Pacific Highway (south) and an 83.3 metre frontage to Womerah Street (east) giving an area of 1997.9m2.
5 The site slopes gently down from the Pacific Highway across to the Womerah. Frontage levels range from 169.7m AHD to 168.5m AHD.
6 The area is characterised by predominantly low-density residential development with many dwellings characteristic of 1900-20s architecture and is being transformed by medium-density housing that is permissible under LEP194. The land abuts No 1211 Pacific Highway to the north that has also been zoned for medium-density housing.
Relevant planning controls
Ku-ring-gai Planning Scheme Ordinance, (KPSO) as amended by Local Environmental Plan No 194, (LEP194)
7 Under the provisions of the KPSO, as amended, the land is zoned Residential 2(d3), and the proposal is permissible with consent. On 28 May 2004, the land was rezoned for medium-density residential development under Local Environmental Plan 194, (LEP194) which amended the KPSO.
8 Under Division 5, cl 25I(2) p 56 of the KPSO the minimum deep soil landscaping for multi-unit housing is:
(a) deep soil landscaping with a minimum width of 2 metres is to be provided on the site area;
(b) a site with an area of less than 1,800 square metres is to have deep soil landscaping for at least 40% of the site area; and
(c) a site with an area of 1,800 square metres or more is to have deep soil landscaping for at least 50% of the site area.
9 Under Division 5, cl 25I(6) p 57 of the KPSO the maximum site coverage is 35% for residential flat buildings. Other controls apply under this division to multi-unit housing.
10 The land is located within the vicinity of local heritage items at Nos 1312, 1284 and 1187 Pacific Highway and Nos 23, 27 and 29 Womerah Street that are referred to in Schedule 7 of the KPSO, [Note: Exhibit 5 pp 123-4]. It is also within National Trust Urban Conservation Area No 20 that is included in draft LEP21, finalised in 2000 by the council and is with the Department of Infrastructure, Planning and Natural Resources (DIPNR). UCA20 is referred to in DCP55 p96. The accompanying map shows part of the land within UCA20.
11 The other side of the Pacific Highway is zoned Residential 2(e) and the other side of Womerah Street is zoned Residential 2(c2).
Development Control Plan 55 Ku-ring-gai Multi-Unit Housing - Railway/Pacific Highway Corridor and St Ives Centre, (DCP55)
12 Relevant provisions of DCP55 include:
· 3.3 Landscape and visual character, including design objectives and controls especially C6 p 20:
- New developments shall provide generous front setbacks and communal open space areas for the establishment of high quality gardens with a mix of exotic and indigenous species consistent with surrounding gardens.
· 3.4 Development within an Urban Conservation Area: pp 21-2 with reference to Appendix C.
· 4.3 Setbacks: with reference to C1-C6 p 29-30:
- C1 The building must be setback the following distances from the boundary (refer to Figure 4)
- C2 Where the site has a depth of more than 45 metres and a width of more than 35m, a front setback zone of 13 to 15 metres from the boundary shall apply unless it can be demonstrated that:
- C3 The setback extends both above and below ground applies to all built elements of the development including car parking, storage, detention tanks or the like.
C4The following elements may encroach into the setback:
- C5 On corner sites the minimum street boundary setback in C1 and C2 above shall apply on both street frontages.
C6 The building alignment shall be parallel to the street alignment.
· 4.4 Built form and articulation: pp33-4 including C3-4 p 34:
- C3 The width of a single building on any elevation facing the street should not exceed 36 metres.
C4 On sites where a building length greater than 36 metres has been justified by an applicant, that portion of a building in excess of 36 m shall be sufficiently recessed and/ or articulated so as to present to the street as a separate building.
13 There are many requirements set out in DCP5 and for a more detailed analysis reference should be made to the instrument.
Development Control Plan No 47 Water Management Plan, (DCP47)
Development Control Plan No 43 Car parking, (DCP43)
Development Control Plan No 40 Construction and Demolition Waste Management, (DCP40)
The proposal and its history
14 Development application No 113/05 was lodged with the respondent council on 10 February 2005 to erect a residential flat building on the land.
15 It is proposed to:
(i) demolish the existing dwellings and associated structures on the land;
(ii) construct a residential flat development providing fifteen (15) units, comprising six (6) x 2 bedroom apartments and nine (9) x 3 bedroom apartments located within a triangular shaped building;
(iii) excavate one basement level of parking for twenty-seven (27) vehicles (including twenty-three (23) resident spaces and four (4) visitor spaces);
(iv) provide vehicular access via one driveway in Womerah street; and
(v) provide landscaping.
16 Previously development application No 1401/01 had been approved on 30 April 2002, by the council to permit the demolition of existing structures and the construction of a State Environmental Planning Policy No 5 – Housing for Aged and Disabled Persons, (SEPP5) development of eight (8) dwellings. That development application has not been carried into effect.
Notification
17 From 23 February to 25 March 2005, the present application was notified to 166 nearby owners and occupants and the council received one (1) objection. That one objection was from Mr and Mrs J Smythe of 5 Womerah Street who expressed concern that:
· The development is not a Pacific Highway development but a Womerah Street development, which will have a significant impact on the quiet amenity of the street;
· All existing vegetation along the eastern boundary should be retained to ensure protection of privacy, the grass verges of Nos 5, 7 and 9 Womerah Street should be protected;
· Energy Australia recommended that an electricity substation would not be required and that all cabling be provided underground at the applicant’s cost.
18 Mr and Mrs Smythe also gave evidence on-site and the parties took notes of their comments, [Note: Exhibits 6 and J]. They were of the opinion that the proposal would be too large and would overpower Womerah Street. They added that they bought in the street because of its landscaped nature, before it was rezoned and added:
· Driveways are opposite other drives and there is a likelihood of traffic conflict.
· Setbacks are inadequate.
· Proposal should be more sympathetic with the streetscape.
· Trees should be planted on the verge; and
· a deferred commencement condition in regard to excavation would be appropriate.
19 On 8 February 2005 the council's Landscape Development Officer, Mr G Bird, advised:
Setbacks
The proposed development will result in average setbacks of 6m to both the Pacific Highway and Womerah Street, with the basement car parking having two pinch points adjacent to the Pacific Highway frontage with a setback less than 2m. This does not comply with Council's DCP55 and limits the available area for tall tree replenishment on site as per the LEP guidelines. From a landscape viewpoint it is preferred/required that setbacks to street frontages be maximised to enable the establishment of tall 'canopy' trees and screen planting. Given the constraints of the site, being triangular with two street frontages, Landscape Services would support one frontage (preferably Womerah Street) having a reduced setback as proposed.
Landscape Plan
A landscape plan by Patio, has been submitted with the application. The landscape as proposed does not include plant species that are endemic to the Sydney Bluegum High Forest (SBHF) that is the plant community endemic to this site. This goes against the requirements within Council's DCP55. It is required that the proposed tall tree planting for the site consist of species that are part of the Sydney Bluegum High Forest plant community,
The application cannot be supported by Landscape Services due to;Drainage
A concept drainage plan has been submitted with the application. The concept plan indicates the location of drainage pits within the landscape, but does not show the location of connecting pipes, which will have the greater landscape impact. Diagram notation states that the final position and numbers of pits will be determined at the construction certificate stage to suit the landscape layout. As the landscape layout has been determined it is required that the drainage also be decided upon to adequately assess the potential impacts.
- non-compliance with deep soil landscaping areas as defined by the LEP;
- minimal setbacks, particularly to the Pacific Highway; and
- lack of Sydney Bluegum High Forest plant species.
20 On 11 April 2005, the applicant was advised of the landscape officer's concerns, and amended landscape plans were received 19 May 2005. The council officers remain of the view that the amendments do not satisfactorily address the issues raised. However, during the hearing the deep soil landscaping was conditioned to comply with the 50% standard under the KPSO as amended by LEP194.
21 On 11 May 2005, the council's development engineer considered the submitted information was unsatisfactory.
22 On 19 May 2005, the council requested additional geotechnical information including a borehole report to assess the capability of the clayey foundation material to structurally support the development. The council also sought information as to the impact of excavation on Trees Nos 3, 8, 25, 34 and 36. At the time of the filing of the appeal this information had not been provided.
23 Also on 19 May 2005, the council's urban design consultant provided a report under State Environmental Planning Policy No 65, (SEPP65). This report concluded that the proposal poorly relates to the future medium density context. It drew attention to the fact that the height, scale and setbacks of the proposal would not comply with DCP55 and this would result in an unacceptable scale and bulk. The report states: “The built, form is inconsistent, as the facades and ground floor plan contain a range or curves, angles and stepped walls which have little regularity and do not relate well one to the other. Relationships should be more developed between parts with similar forms and proportions.” Another concern of this consultant was that the setbacks would not provide sufficient curtilage for landscaping and the internal amenity was poor.
24 On 14 June 2005 officers of the council met with the applicant to discuss the project.
The council’s decision
25 When the appeal was filed the council had not determined the development application and thus the appeal is a deemed refusal. The council has since formally refused the development application.
The hearing
26 The appeal was filed on 7 July 2005.
27 At the hearing the court received evidence on behalf of the respondent council from:
· Ms N Richter, Executive Planner, Ku-ring-gai Council;
· Mr R Olsson, consultant architect;
· Mr G Bird, Landscape Development Officer, Ku-ring-gai Council, and
· Mr and Mrs Smythe, residents of No 5 Womerah Street.
28 On behalf of the applicant evidence was given by:
· Mr J D Chesterman, consultant architect and urban designer;
· Mr A Minto, consultant town planner.
The issues
29 On 23 August 2005 the council filed a statement of issues.
1 Streetscape and Visual Impact: The proposed front and side setbacks and the design of the front elevation of the building, result in an undue imposition of built form on the streetscape and on surrounding properties.
2 DCP 55 specifies a street boundary setback of between 10-12 metres with no more than 40% of the front setback zone being occupied by the building footprint.
- The development achieves a front setback of between 2-6 metres at basement level and between 5-11 metres at ground level along the Pacific Highway frontage. The building footprint occupies 55% of the front setback whereas no more than 40% is required under DPC 55. Front courtyards also encroach on the 8-11 metre setback requirement. This limits Deep Soil Zones and the potential for tall tree canopy planting as required by LEP 194 and DCP 55. Satisfactory landscape screening cannot be achieved within the Pacific Highway setback to mitigate adverse amenity impacts, screen the building from the street and integrate the development with its surrounds.
- (LEP194 clause 25D(2); DCP 55 clause 4.3 control C1, clause 4.4 control C3).
- (LEP194, clause 25D(2); DCP 55 clause 4.3, control C1).
- (DCP 55, clause 4.4, control C3 and C4).
- (DCP 55, clause 4.4, objectives 03 and 04 and controls C3 and C4).
- (DCP 55, Part 2, controls E11, E12 and E16).
- (LEP194, clause 251(5)).
- (LEP194, clause 25D(b) and (f) and clause 251(2).
- (LEP194, clause 251(2)(a) and (c).
- (DCP 55, clause 4.5.5, control C1, C2).
- (DCP 55, clause 4.5.1, control C4).
- 13.1 A borehole report and details as to its location on the site plan;
13.2 Clarification as to whether the clays beneath the site are unsupported at a near vertical angle; and
13.3 The impact of the excavation proposed (up to 5 metres deep) on tree Nos 34, 8 and 36 along the Pacific Highway frontage and tree Nos 3 and 25 along the Womerah Street frontage.
14 Objections: Issues raised by the objectors, including bulk, scale and landscaping.
15 Conditions: The Respondent submits that none of the issues can be resolved by conditions of consent in the circumstances of the case.
30 Streetscape and visual impact emerged as the salient issues:
The evidence and findings
Streetscape and visual impact
31 The parties agreed that the proposal complies in every respect with the development standards for medium-density housing under the KPSO as recently amended by LEP194. However, the proposal does not comply with the setback requirements of the DCP55 that would require a setback between 10m and 12m from both the Pacific Highway and Womerah Street. The applicant points out that were the building footprint defined by these front setbacks and a side setback of 6m the coverage would be around 21% and under the KPSO the allowable coverage is 35%. Thus the applicant comes to the appeal seeking to convince the Court that the setback and landscaping objectives of DCP55 can be met by providing lesser setbacks. Mr Kondilios also submitted that there may be an inconsistency between the provisions of the KPSO and DCP55 in regard to setbacks.
32 It is noted that although there is a tension between the KPSO and DCP55 in regard to front setbacks and building coverage, the proposal, when compared to development of 35% coverage in the same zone on rectangular sites nearby, would provide a similar extent of deep soil landscaping as under the DCP55. It is proposed to provide 50% of the site area as deep soil landscaping as is required under DCP55. So although the proposed setbacks would be less than required under DCP55, the landscaped area is not so constrained. This is because the triangular land has proportionately longer street frontages and perimeter compared with those attributes of a rectangular parcel of land.
33 An advantage of a parcel of land with a long street frontage is that the private landscaping in the front setback might be supplemented by planting in the council verge for a longer distance. Large endemic tree species planted in the front setback would have space for the canopy to extend over both the public and private land. Also the existing large trees in the council’s verge that add to the ambiance of the area would have space to grow and in time would be augmented by the proposed landscaping.
34 Mr Chesterman, an architect, who was engaged by the applicant and who with Mr Minto, prepared a position statement, dated 20 September 2005, referred to this point.
35 Mr Chesterman considered “…the character of Womerah Street derives from high canopy of trees”. He said that the vegetation comprised scattered tall trees in private gardens, and lower level vegetation in the public areas. He pointed to the fact that “…the existing house [on the Womerah Street frontage of the land is] almost as high as the proposal, setback 1.5m and is almost invisible [when viewed from the street]”.
36 He said,
- …it is possible to replace the lower vegetation to break up the visual bulk [of the proposal]. [It would be possible to] see parts of it. [However, there would be] room in the 6m-setback [for screening vegetation] and the whole space is available for that. At the NE end, the building is setback 8m and there is more space for vegetation to break up the view of it”.
37 The upper floor, he said,
- …is setback and only three storeys would be visible from the deeper end of Womerah Street. The building is setback a long way from the corner [of the land]. As you approach the corner heading north, there is adequate space in there and there would be vegetation to hide the 2.5 storey building. Enough room to ensure the building is not overbearing. The façade is modelled and slightly longer than the 36m allowed, and as it is setback at the ends, it would not read as more than 36m. [It is also] broken into two parts by a recessed entrance lift tower of different material and that modulates the building. [As a result it would be] remarkably similar to the p 33 DCP requirements. In my view the built form and articulation, [is satisfactory].
38 Mr R Olsson, for the council said,
I take a different view of the site. Pacific Highway is a ridge road and the land falls away down the side street. The overall fall on the site is around 4.5m or around 1.5 levels in height. [It is] a good principle is to step buildings in relation to the topography. This has been done elsewhere. On this, the building is entirely flat and does not relate [to the topography]. [As a result] the NE corner [of the proposal] is higher. At the corner of Womerah Street the building is set at NGL and at the NE end it is 1m out of the ground. The ground falls away considerably and 2.5m plus 1m gives a 3.5m visual difference in height. From the model [it is possible to see that the proposed] building is not setback 8m from the front or the side boundary. From the front it is 6m and the balcony projects and emphasises the corner. Also the car park is cut in. This is the prominent part of the site [and in close proximity to the] adjoining the detached houses in the 2(d3) zoned land next door. This is the most visible when looking from Womerah Street.
This is a taller building than that on the land. The new building will be visible, and [would appear as a] long and tall building compared with what is there at the moment. If the existing trees were to remain the proposal would be visible above those trees. Therefore the amount it is setback is relevant.The design of the building should be changed so the NE corner is lowered and this could be done by design. Those apartments could be lowered and two-sided lifts can be used where there is only one lift. The overall intent of the LEP and DCP is to place buildings in a landscape setting and that is related to the building setback. To achieve this there is need for a relatively deep setback. [With a lesser setback the designer] can’t achieve the layers of landscaping that is characteristic of other houses in Womerah Street.
39 Mr Olsson continued and pointed out,
- …that the length of the proposed building is greater than the required 36m [and the council’s] objective is that buildings are seen in a landscaped setting. [He added,] there is a clause that says that where the overall length cannot be reduced below 36m, it should be setback. I would like to see, given the prominence of this corner setback this NE part setback to achieve the effect of a shorter building and reduced visual prominence.
40 Chesterman replied,
- [at the NE corner, there is a] sliver of land that would become a driveway [and this] actually creates a major separation. It is agreed, that in principle stepping buildings down [with the topography] is appropriate, however, it is a matter of degree and I am not convinced it is necessary in this instance. [To step the building down] creates complications inside and split-level lifts are not brilliant. One of the advantages of having the building elevated is that the driveway can be less steep. [This also provides] privacy for the balcony above street level. On balance it is not worth stepping it down.
41 The witnesses then discussed the possibility of stepping down at the northwestern corner with a split-level design.
42 The council argued that the proposed front setback to the Pacific Highway and the design of the front elevation of the proposal would result in an undue imposition of built form on the streetscape and on surrounding properties. However, for about 45% of the Pacific Highway frontage there would be no building adjacent to the street frontage and thus the openness of the front setbacks of adjoining properties may be in part replicated. This would be especially so near the intersection of the Pacific Highway and Womerah Street where the corner would be open for around 24m. At the corner the landscaping and absence of building could be appreciated from both streets.
43 Under the provisions of DCP55, a street-boundary setback of between 10m-12m is required and the building footprint should not occupy more than 40% of the front setback zone between the 10m and 12m lines. The proposed Pacific Highway front setback at first floor level would be between 6m-16m and the proposed building footprint would be around 45% of the front setback if the end balconies were included and if the end balconies were excluded 37.5%, and thus the proposal, without the balconies, would comply with the 40% maximum requirement. There is an argument that the balconies should be assessed differently to the façade of the building proper, as balconies would provide a visual lightness that the building’s walls would not. However, the council maintained that, if the end balconies were included the proposal would not meet the requirements of DPC55. I am satisfied that some flexibility in the application of these requirements would be appropriate on this corner parcel of land, given the form of the building with end balconies. I would not refuse the application for reason of limited front setbacks, lack of landscaping, or extent of building. In this regard, I prefer the evidence of Mr Chesterman to that of Mr Olsson.
44 The council argued that front courtyards would encroach on the front setback on Pacific Highway thereby limiting deep soil landscaping and the potential for tall tree canopy planting as required by LEP194 and DCP55. During the hearing Ms Richter and Mr Minto carefully measured the extent of deep soil landscaping and agreed that the proposal, if deficient in this regard, it would be deficient only to a minor extent and could be made to comply with the 50% requirement, [Note: Ms Richter measured the area as 49% and Mr Minto, who used CAD measurements, around 51%]. I am also satisfied that the canopies of tall trees planted in deep soil could overhang the courtyards given their proposed position abutting the face of the building. Conditions are proposed to ensure that the deep soil landscaping would meet the 50% requirement and Mr Bird, the council’s landscape development officer, was satisfied that the proposed tree species would mature to a stately height. I would not refuse the application for this reason.
45 The council maintained that satisfactory landscape screening couldn’t be achieved within the Pacific Highway setback to mitigate adverse amenity impacts of this nearby busy and noisy road. The council also sought by use of landscaping to screen the building from the street and integrate the development with its surrounds. (LEP194 clause 25D(2); DCP55 cl 4.3, control C1). I am satisfied that given the variable Pacific Highway setback and the absence of building on the southern corner of the land that the landscaping objects of the LEP194 and DCP55 would be largely met. I am not persuaded that increasing the width of landscaping from 6m to 12m would markedly increase sound attenuation. I would not refuse the application for this reason.
46 It is proposed to setback the proposed development 6m along Womerah Street and the provisions of DCP55 would require between 10m-12m setback to this street. The council argues that insufficient landscaping screening would be provided as a result. Also the council argues that the length, height and form of the building would present an unacceptable bulk and affect the visual amenity of the Residential 2(c2) zoning located opposite on Womerah Street. (LEP194 cl 25D(2); DCP55 cl 4.3 control C1, cl 4.4 control C3). I am satisfied that with the presence of the proposed driveway, and the grassed open space in the southern courtyard of the proposal, that the landscaping along Womerah Street would be compatible with the open front gardens of the low density development along that street. The landscaping would provide both openness and enclosure. Given that the land is presently screened from view in Womerah Street, I am satisfied that when the proposed landscaping matures it would not appear markedly different to the visual impact of the present vegetation and not out of character with the street. I would not refuse the application for this reason.
47 The council argues that the proposed 6m-setback along the northwestern boundary would be inadequate. This deficiency it says would prevent the establishment of a tall trees within deep soil landscaped area as required by LEP194, and would adversely impact on the amenity of the existing dwelling and any development in the future on the abutting land to the northwest. (LEP194, cl 25D(2); DCP55 cl 4.3, control C1). I am satisfied that the proposed setback would be adequate and as explained above, I would not refuse the application for this reason.
48 The council points to the fact that the width of the building along Womerah Street would be 47m whereas DCP55 sets a maximum width of 36m along any street elevation. The council says that the large expanse of building and lack of architectural relief provided across the facade would result in significant visual impact for the Womerah Street public domain and streetscape. It says that the bulk of building would particularly affect properties within the Residential 2(c2) zone, opposite on Womerah Avenue. (DCP55, cl 4.4, controls C3 and C4). I am satisfied that the proposal would be satisfactorily screened by vegetation and architecturally articulated so that the visual impact on Womerah Street would not be sufficient reason to refuse the application. I am satisfied that the proposal would meet the requirements of cl 4.4 C4 p 34 of DCP55 in that although it would be greater in length than 36m the ends would be recessed and the façade sufficiently articulated so as to present to the street as a separate building. Again, the evidence of Mr Chesterman persuades me in this regard.
49 The council says that the scale of the development would be unacceptable and would poorly relate to the surrounding pattern of development and the desired future character of the area. The council says that the building alignment breach of DCP55 for street setbacks built form and façade treatment (curves, angles and stepped walls) would be inconsistent and irregular and as a result the proposal would not respond appropriately to the existing low-density housing in the area. (DCP55, cl 4.4, objectives O3 and O4 and controls C3 and C4). In addition the council says that the proposed materials and treatment for the facades would be inconsistent with the requirements of SEPP65. The development detracts from the natural setting, is excessive in scale and relates poorly to the existing and desired future built form of Pacific Highway. (DCP55, Part 2, controls E11, E12 and E16). On merit, I am satisfied that the proposal would be well articulated and landscaped so as to ensure a reasonable relationship with the existing low-density housing in the area. I have also had regard for the emerging character of development along the Pacific Highway and the fact that further to the west there would be a predominant front setback of between 10m and 12m. However, as this is the last development site in the row, and the proposal would present to the street with a variable front setback, I consider the proposed setback to be acceptable and appropriate to the character.
50 Certainly, there would be a change in the scale between the medium-density Residential 2(d3) development proposed on the land and the Residential 2(c2) zoned land, on the other side of Womerah Street and the Residential 2(e) zoned land on the other side of the Pacific Highway. This difference in the scale of development is a consequence of planning decisions taken by others and would not be a reason to refuse the present application. I am satisfied that the proposal has been thoughtfully designed to ameliorate the adverse impacts, and I would not refuse the application for this reason.
51 The council, during the hearing, conceded that the proposal would not exceed the 4-storey height control as the basement was found to not extend further in height than 1m above natural ground level at the northeastern corner, (LEP194, cl 25I(5)). I am satisfied that the proposal thus would comply with the height standard. Hence no height standard-SEPP 1 objection was required. However, the council maintained its objection to the scale of the building at the northeastern corner. It considered this aspect of the proposal to be unacceptable having regard for the non-compliance with the DCP55 setback controls and the alleged lack of opportunity for landscaping. I have dealt with this aspect above and I am satisfied that the proposed bulk and scale of the northwestern corner of proposal would be adequately articulated and screened so as to not impose greatly on the neighbouring low-density residential in Womerah Street. I would not refuse the application for this reason. In coming to this conclusion, I have had regard for the fact that part of the land along the Womerah Street frontage is within at National Trust Urban Conservation Area that has been incorporated in DCP55. I am satisfied that most of the concerns of Mr and Mrs Smythe have been addressed by me above. However, they were concerned that the proposed driveway would be opposite an existing driveway in Womerah Street. Given the low traffic generation of the proposal and likely low level of traffic movements I am satisfied that there would not be sufficient vehicular conflict to warrant refusal of the application for this reason. I note that the council did not make this an issue.
Deep soil landscaped area
52 The council’s concern that the deep soil landscaped area would not be extensive enough to comply the 50% requirement under the KPSO was analysed during the hearing by Ms Richter and Mr Minto and a measure of agreement was reached. The parties agreed that a condition could be imposed to ensure that the minimum requirement of 50% would be met. Thus no SEPP 1 objection is required and this was not an issue to be decided by me. The setbacks might be less than required by DCP55, but the deep soil landscaped area would be consistent with the requirements of the KPSO. The fact that much of the deep soil landscaping is near the street would enable the canopies of mature trees to be accommodated within the narrower setback area by partly overhanging the street.
Submissions
53 Mr Marincowitz referred the Court to the decision of his Honour McClellan CJ in Stockland Development Pty Limited v Manly Council [2004] NSWLEC 472 at paras 86-7. In that case, the Chief Judge, referred to the Court of Appeal decision in Zhang v Canterbury City Council (2001) 115 LGERA 373 and that the requirements of the development control plan are to be the “focal point of consideration” and the principles relevant to consideration of development control plans are:
· A development control plan is a detailed planning document which reflects a council’s expectation for parts of its area, which may be a large area or confined to an individual site. The provisions of a development control plan must be consistent with the provisions of any relevant local environmental plan. However, a development control plan may operate to confine the intensity of development otherwise permitted by a local environmental plan.
· A development control plan adopted after consultation with interested persons, including the affected community, will be given significantly more weight than one adopted with little or no community consultation.
· A development control plan, which has been consistently applied by a council, will be given significantly greater weight than one, which has only been selectively applied.
· A development control plan which can be demonstrated, either inherently or perhaps by the passing of time, to bring about an inappropriate planning solution, especially an outcome which conflicts with other policy outcomes adopted at a State, regional or local level, will be given less weight than a development control plan which provides a sensible planning outcome consistent with other policies.
· Consistency of decision-making must be a fundamental objective of those who make administrative decisions. That objective is assisted by the adoption of development control plans and the making of decisions in individual cases, which are consistent with them. If this is done, those with an interest in the site under consideration or who may be affected by any development of it have an opportunity to make decisions in relation to their own property which is informed by an appreciation of the likely future development of nearby property.
54 Mr Marincowitz submitted that DCP55 had undergone a lengthy public participation process and urged the Court to give it weight. I accept that submission.
55 He also submitted that although Mr Chesterman had said that the proposal presents as one articulated building to Womerah Street, Mr Olsson considered there would be “…too much articulation”. He submitted that the purpose of DCP55 to limit the length of street elevations to 36m would not be served by the present design. He submitted that the proposal would not be sufficiently articulated to present as a ‘separate building’ under control C4 of DCP55.
56 Mr Kondilios submitted in reply, that Moore C in Red Sea Investments Pty Limited v Ku-ring-gai Council [2005] NSWLEC 380 at para 36 had referred to the decision of his Honour McClellan CJ in Stocklands relating to the public consultation process for development control plans. Also he submitted that Moore C endorsed the public participation process for DCP55 and that the length of façades of buildings under C3 of DCP55 of 36m may be departed from in certain circumstances. Moore C, in that case, stated, “…it is possible that a building of 47m in length could have been designed in an acceptable fashion by, for example, breaking the structure at the upper level(s).” I am satisfied in the present case that there is adequate articulation to meet to Control C4 and thus also to meet Control C3.
57 Mr Kondilios referred to Red Sea v Ku-ring-gai para 17 and that compliance with the DCP55 setbacks would lead to an inconsistency with the maximum site coverage of the KPSO. In this regard Moore C stated:
- 17 I am satisfied that compliance with the setback requirements contained in the Development Control Plan would lead to an inconsistency with the provisions of cl 25I(6) of the KPSO in that the maximum site coverage of 35% would not capable of achievement on the site if the setbacks in the Development Control Plan were complied with. I am also satisfied from the view and the resident evidence that there are no adverse impacts of these non-compliances. As a consequence, I am not prepared to refuse or require modification to the application on the basis of non-compliance with the setbacks.
58 I too have reached a similar conclusion in this case with regard to setbacks and site coverage.
59 For the above reasons, the appeal is upheld.
Costs
60 There were no submissions in relation to costs. I am satisfied that it would be appropriate in this case that each party pay its own costs. I so order.
Conditions
61 The conditions are those in Exhibit 11, as amended by Exhibit 13 in respect of Conditions 56A and 91.
91. The applicant shall confirm by way of a surveyor’s certificate prepared by a registered surveyor that the site contains a minimum of 50% deep soil landscaping (as defined in LEP194).56A. The applicant shall submit a plan indicating a minimum of 50% deep soil landscaping (as defined in LEP194) on site. The plan certified by a surveyor is to be submitted to the Principal Certifying Authority for approval and is to include a detailed breakdown of those areas constituting deep soil landscaping with associated calculations in square metres.
62 Also by E-mail dated 5 October 2005 the parties agreed on an amendment of Condition 60 in respect of s 94 contributions, [Note: Exhibit 14]. Paragraph 2 of Condition 60 is amended so that $200,061.21 is inserted in place of the figure $218,505.70.
Orders
63 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.
2. Development application No 113/05 lodged with the respondent council on 10 February 2005 to erect a residential flat building providing fifteen (15) units at Nos 1203-1209 Pacific Highway, Turramurra, being Lot A DP 185717 (No 1203 Pacific Highway, Turramurra), and Lot 12 DP 8442 (No 1209 Pacific Highway, Turramurra) is approved subject to Conditions 1 to 107 in Annexure A.
3. Each party pay its own costs.
4. The exhibits with the exception of Exhibits C, D, E, F, G, H, 8, 9, 11, 13 and 14 are returned.
The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site atS J Watts
Commissioner of the Court
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