Pallas-Hones v Ku-ring-gai Council

[2006] NSWLEC 813

Land and Environment Court

of New South Wales

CITATION:

Pallas-Hones v Ku-ring-gai Council [2006] NSWLEC 813

PARTIES:

APPLICANT
Cecilia Francesca Pallas-Hones

RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):

10842 of 2006

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Additions to dwelling, SEPP 1 Objection to height, bulk/scale

LEGISLATION CITED:

Environmental Planning and Asessment Act
State Environmental Planning Policy 55
State Environmental Planning Policy 1
Draft State Environmental Planning Policy 1, Sydney Regional Environmental Plan No. 20 Hawkesbury - Nepean River
Ku-ring-gai Planning Scheme Ordinance - 1979
Development Control Plan 38 – The Ku-ring-gai Residential Design Manual

DATES OF HEARING:

14/12/2006

EX TEMPORE JUDGMENT DATE:

12/14/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr D Thomas, solicitor
SOLICITORS
Hones Lawyers

RESPONDENT
Ms C Bracks, solicitor
SOLICITOR
Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

14 December 2006

10842 of 2006 Cecilia Francesca Pallas-Hones v
Ku-ring-gai Council

JUDGMENT

This decision was given extemporaneously.

It has been revised and edited prior to publication.

Background

1 This appeal was lodged against council's refusal of a development application for alterations and additions to an existing dwelling situated at 25 Gwyder Avenue, North Turramurra.

2 The following issues were identified for the appeal:

• The height of the additions, involving consideration of a SEPP 1 Objection,
• FSR compliance,
• Bulk/scale/streetscape impacts.

The site

3 The subject site is described as Lot 14 in DP 213027. It is an irregular shaped allotment situated at the head of cul-de-sac and has an arc-shaped frontage of 8.51 m and total area of 940.8 sq m. The rear northern boundary of the site adjoins Ku-ring-gai Chase National Park.

4 The site is located on the northern side of the cul-de-sac and currently contains an existing dwelling house. It has a crossfall from east to west.

The proposal

5 The proposal is to alter and add to the existing dwelling on site and construct a new swimming pool and front fence as follows:

• construct a 1.2m high brick piers with metal infill fence,
• construct a swimming pool with spa (12.5m x 3.5m) at the rear of the dwelling,
• ground floor modification comprising internal reconfigurations and construction of new portico, foyer, meals room, laundry and terrace,
• first floor petitions comprising three bedrooms, ensuite, bathroom, studio, WC, two decks and balcony,
• construction of an additional garage in the basement.

Planning controls
State Environmental Planning Policy 55,
State Environmental Planning Policy 1,
Draft State Environmental Planning Policy 1, Sydney Regional Environmental Plan No. 20 Hawkesbury - Nepean River,
Ku-ring-gai Planning Scheme Ordinance - 1979 (KPSO)

6 Under which the site is in the Residential 2C zone and the development is permissible with consent. The following provisions are relevant:

Aims and Objectives for Residential Zones

1 (a) to maintain and, where appropriate, improve the existing amenity and environmental character of residential zones; and

(b) to permit new residential development only where it is compatible with existing environmental character of the locality and has a sympathetic and harmonious relationship with adjoining development.
2 The specific objectives of this Ordinance in relation to land within Zone Nos. 2(a), 2(b), 2(c), 2(d), 2(e), 2(f), 2(g) and 2(h) are to ensure that -

(e) all new dwelling houses and additions to existing dwelling houses are of a height, size and bulk generally in keeping with that of neighbouring properties and, where large buildings are proposed, they are designed so as not to dominate and so far as possible to harmonise with neighbouring developments; and

Height of buildings

46 (1) Notwithstanding the provisions of Part 111 of this Ordinance, a building shall not be erected to a height, across any point the site, which is greater than 7 metres without the consent of the Council.

“Ground level " means the level of the site before development is carried out on the site under this Ordinance.

" Height " in relation to a building, metres distance measured vertically from any point on the ceiling of the topmost floor of the building to the ground level immediately below that point
Development Control Plan 38 – The Ku-ring-gai Residential Design Manual

7 This DCP:

• Establishes the fundamental roles of site analysis and statement of environmental effects in the overall design process to ensure proposals are designed and sited to reflect the site conditions and environmental constraints, while also respecting the neighbourhood character and amenity of adjoining properties.
• Contains assessment criteria made up of both descriptive and performance standards to guide design.
• Focuses on outcomes in order to be responsive to the visual character and future vision for Ku-ring-gai, which is a heritage municipality within national parks.

8 Clause 4.1 deals with streetscape and makes reference to the Visual Character Study.

9 Clause 4.2 deals with Building Form where the objectives are:

a) To ensure that the bulk, scale and height of the proposed works do not dominate the natural landscape, the existing streetscape, nor adversely impact on the tree canopy vista
b) To ensure that building bulk, height, location and footprint provide for sufficient soft landscape area for planting and retention of large canopy trees.
c) To allow adequate daylight, sunlight and ventilation to living areas and private open spaces of new and neighbouring dwellings.
d) To protect reasonable neighbour amenity including visual and acoustic privacy particularly in regard to living areas and private open space.
e) To encourage the sharing of views, whilst not restricting reasonable development potential of a site.
f) To encourage well-designed, attractive and site responsive buildings.
g) To achieve consistency with the principles of ecologically sustainable development.

10 The DCP provides a variable allowable FSR depending on site area, whereby the subject site has a maximum allowable FSR of 0.378:1.

11 Clause 4.5 deals with access and parking.

Development Control Plan 43 - Car Parking
Development Control Plan 47 - Water Management
Development Control Plan 40 - Waste Management
Development Control Plan 31 – Access.

The evidence

12 The detailed technical evidence in this matter was presented in a joint planning report (Exhibit 4) by Mr M Leotta (Council’s team leader development assessment), Mr J Kim (Councils development assessment officer) and Mr I Glendinning (applicant's consulting town planner).

13 The threshold issue concerns the 8.27m height of northern corner of the proposed bedroom 1, which exceeds the maximum height (8 m) development standard. In response to this, Mr Glendinning submitted a SEPP 1 objection, to this accepted development standard.

14 In the absence of stated objectives for this standard in the KPSO, Mr Glendinning referred to other planning documents and derived the following underlying objectives:

• To limit the height of dwellings so that they do not dominate the treed landscape of Ku-ring-gai;
• To limit the extent of overshadowing and visual and aural intrusions on the private open space of neighbouring properties;
• To ensure significant views from neighbouring dwellings are not unduly compromised;
• To maintain the integrity of existing streetscapes.

15 The Glendinning also said that Schedule 9 of the KPSO provides additional guidance, with the relevant objectives being:

2 (a) All new dwelling houses and additions to dwelling houses maintain a reasonable level of sunlight to neighbours living areas and recreation space between 9 a.m. and 3 p.m. in the winter solstice on 22 June; and


(b) All new dwelling houses and additions to dwelling houses are sited and designed so as to minimise overlooking of neighbours living areas and recreation space; and

(e) All new dwelling houses and additions to existing dwelling houses are of a height, size and bulk generally in keeping with that of neighbouring properties and, where larger buildings are proposed, they are designed so as not to dominate and as far as possible harmonise with neighbouring developments; and …

16 The reasons presented that strict compliance with development standard is unreasonable and unnecessary are:

• The non-compliance with the height is as a consequence of the fall of the land in the north-eastern corner of the site and the desire to maintain existing floor levels for the first floor extension.
• The proposed alterations and additions will result in a dwelling that is consistent in its height, bulk and scale with properties in the locality.
• The area of non-compliance is very minor and is restricted to the rear north-east corner of the dwelling.
• Given the location of the breach, the departure will not detrimentally impact on the existing streetscape.
• Shadow diagrams have been prepared and submitted with the application. The height breach makes no discernible increase in shadow impact.
• The proposal does not result in the loss of any significant views from neighbouring dwellings.
• The proposal does not result in a loss of privacy to adjoining properties.

17 The SEPP 1 Objection also addressed the provisions of the Draft State Environmental Planning Policy (Application of Development Standards) 2004. Accordingly, Mr Glendenning expressed the opinion that the proposed variation will result in a better environmental planning outcome, with the key benefits being:

a) The area of non-compliance with the maximum ceiling height will not be visible from the adjoining properties.
b) The site is well screened from the street and adjoining properties and the non-compliance would not be perceived.
c) The area of non-compliance is minor.
d) …

18 From this, Mr Glendinning says that strict compliance with this development standard is unnecessary and unreasonable in the circumstances of this case.

19 Insofar as Mr Leotta agrees that the degree of non-compliance is minor, he nevertheless says it is indicative of a design that aims to maximise total floorspace area on site with no apparent justification. Therefore, the non-compliance with the 8m maximum height control is symptomatic of scale and bulk issue raised by Council.

20 For the assessment of this issue, the planners agreed that the bulk and scale of the proposal should be considered in conjunction the building height assessment. The sliding scale in the DCP for FSR allows 0.378:1, which is exceeded by the proposals 0.477:1. In accordance with the DCP provisions, no basement area is included, except for the garage area in access of 31 sq m.

21 In considering the implications of the variation in FSR, Mr Glendinning says that the deletion of first floor terrace and balcony would reduce the FSR to the order of 0.45:1.

22 The council planners’ contend that the proposal is too excessive in FSR and will result in a height, size and bulk which will not be in keeping with that of neighbouring properties within the locality and will result in the undue imposition of bulk upon the streetscape and public domain. They noted that the proposed upper level has a floor area of 150.9 sq m and if this was reduced to achieve numeric compliance with the FSR control under DCP 38, there would be an appropriate mitigation of adverse bulk impact upon the streetscape and when viewed from adjoining sites. This could include a `stepped back' upper level design to achieve a gradual increase in building height, instead of an abrupt increase in building height, relative to the topography of the site and the adjoining dwelling to the west at 32 Gwydir Avenue.

23 Mr Glendinning disagrees and says that whilst the additions will result in a large dwelling, that of itself, is not a reason for refusal. There are many large dwellings in Ku-ring-gai Council and in North Turramurra in particular. Whilst the proposed dwelling is large, he does not consider that the Council has particularised any adverse amenity impacts to adjoining properties.

24 In consideration of this issue, Mr Glendinning notes that there is no FSR control with regard to dwelling houses within the Ku-ring-gai Planning Scheme Ordinance (KPSO). However, there is a building envelope control in that the maximum height is 8.0m and the maximum built-upon area is 60%. The proposed dwelling, except for a very minor departure satisfies these development standards. Therefore he argues that the envelope controls are there to control the height, bulk and scale of dwellings in the same way as the DCP FSR control does. In this circumstance, he questioned whether or not the DCP has imposed controls more onerous than the controls in the KPSO.

25 Mr Glendinning also says that there is no issue with respect to built upon area and provision of landscaping to the site. The built-upon area is 53.7%, which satisfies the DCP No. 38 requirement of 54%. Again a provision that is more onerous than the KPSO standard of 60% - (See Clause 60(c) of the KPSO). Therefore he rejects Council planners position that the building will be to large because:

• The development exhibits an appropriate scale relationship to the street.
• The development will retain all existing trees on the site and sits within the existing treed landscape rather than dominate it.
• The dwelling is located on the low point in the street and other dwellings at the end of the cul-de-sac and this group of houses is designed to look out over the predominant rearward bushland views rather than any views over the street and across the subject site.
• There are no local resident objections to the proposed development.

26 In the joint conference, the planners referred to the Planning Principle - 'Compatibility between a building and its surrounds' - Project Venture Developments v Pittwater Council (2005) NSWLEC 191, which provides tests for the assessment of compatibility. They addressed this planning principle in the subject context as follows:

“In order to test whether a proposal is compatible with its context, two questions should be asked - namely:

- Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites.

- Is the proposal's appearance in harmony with the buildings around it and the character of the street?

In this case, the setback, the height and the landscaped area is compatible with existing developments on surrounding allotments and the project will be enhanced by the proposed landscape treatment, as detailed in the landscape plan submitted.

The Planning Principle -'Relationship of density to residential climate (Salanitro - Chafei - v Ashfield Council (2005) NSWLEC 360)) articulates a method for assessment of dwelling density

The question asked is:

Is there an upper level of density above which it is hard to achieve comptability with the character of typical single dwelling areas?

It is answered as follows:

" The upper level of density that is compatible with the character of typical single dwelling areas is around 0.5:1. Higher densities tend to produce urban rather than suburban character. This is not to say that a building with higher FSR than 0.5:1 is necessarily inappropriate in a suburban area, only that once 0.5:1 is exceeded, it requires high levels of design skill to make a building fit into its surroundings ".

As agreed between the parties, the proposed development has an FSR of 0.477:1 which is less than 0.5:1. In the calculation of this area, Council includes 34.75m7 sq m of garage space and upper 26m2 for floor balconies - with these areas deleted, the FSR is reduced to 0.41:1. The proposed development is within the acceptable range of floor space for suburban development .”

27 Notwithstanding this, the Council planners contend that the intention of building envelope controls is to control the location of bulk and scale relative to property boundaries. Whilst, the maximum height control is self-explanatory, a FSR control aims to mitigate the overall bulk and scale of development on site and works in conjunction with, not in isolation from nor in contradiction to, the building envelope controls, which function on a locational premise. For these reasons the Council planners maintain that there will be an adverse impact on the streetscape due to building bulk.

28 However they agree that the modified 1.5m high front fence, with 1m setback and incorporating landscaping is acceptable. Also, that the proposed triple garage will have minimal adverse visual impact due to the setback to the street and alignment of garaging relative to the front street boundary.

Conclusions

29 Having considered the evidence, submissions and undertaken a view, I consider this proposal merits conditional consent. The main issue relates to the height, bulk and scale of the building additions, in terms of the streetscape impact.

30 The height non-compliance of 267 mm, over a length of less than 1m at the rear northern corner of the building, is not in my opinion inconsistent with the underlying objective for the building height development standard. This minor variation is indiscernible in the streetscape, and it does not cause any adverse amenity impacts on adjoining properties or offend other development controls.

31 In considering the competing competing evidence, I note Mr Leottas preference that part of the 2-storey ridgeline should be stepped down along the western boundary where this non-compliance occurs. Alternatively, I note the applicant's response that this minor non-compliance could be rectified by the provision of a small bulkhead in that area, or internal configurations that have no impact on the streetscape.

32 On balance, I consider proposal is acceptable because the design generally follows the sloping contours of the land, it is within the context of other 2 storey neighbouring dwellings and the proposed extension will be seen against the treed backdrop of Ku-ring-gai Chase National Park. If minor height reductions were made, or a “ stepped roof form” required, it is likely in my opinion that the resulting roof form would lose the proposed symmetry and therefore have a less acceptable streetscape presentation.

33 Another circumstance of this case involves the irregular, fan-shape of the allotment. As the proposed additions are to follow the existing building footprint, the section of the height compliance is setback some 19m from the road boundary and this recessive setback mitigates to a reasonable extent, any adverse streetscape impacts.

34 For these reasons then, I consider that street compliance with the building height development standard is unnecessary and unreasonable and therefore the SEPP 1 should be allowed. In the ultimate, I rely on Mr Glendinning’s evidence to grant conditional consent to the proposal.

Court orders

1. The appeal is allowed .
2. The SEPP 1 Objection to the maximum height development standard in cl. 46(2) of the KPSO is allowed.
3. Development consent is granted to DA No. 342/06 for alterations and extensions to the dwelling at 25 Gwyder Avenue, North Turramurra, subject to the conditions in Annexure A.
4. The exhibits may be returned except for 4, 5, A, C and D.

___________________

R Hussey
Commissioner of the Court
rjs