Project Venture Development No 11 Pty Limited v Ku-ring-gai Council
[2005] NSWLEC 624
•11/03/2005
Land and Environment Court
of New South Wales
CITATION: Project Venture Development No 11 Pty Limited v Ku-ring-gai Council [2005] NSWLEC 624
PARTIES: APPLICANT:
Project Venture Development No 11 Pty Limited
RESPONDENT:
Ku-ring-gai CouncilFILE NUMBER(S): 10780 of 2005
CORAM: Watts C at 1
KEY ISSUES: Development Application :- Height in storeys
Perimeter ceiling heightLEGISLATION CITED: Ku-ring-gai Planning Scheme Ordinance, (KPSO) as amended 5 August, 2005
Local Environmental Plan No 194, (LEP194)
State Environmental Planning Policy No 65 – Residential Flat Design Code, (SEPP65)
Development Control Plan 47- Water Management Plan, (DCP47)
Development Control Plan 55- Ku-ring-gai Multi Unit Housing, (DCP55)
Environmental Planning and Assessment Act 1979, ss 97 and 79CCASES CITED: Falcomata v Ku-ring-gai [2005] NSWLEC 459
DATES OF HEARING: 03/11/2005 EX TEMPORE JUDGMENT DATE: 11/03/2005
LEGAL REPRESENTATIVES: APPLICANT:
RESPONDENT:
Mr G Newport, barrister, instructed by
Mr P Paris, Project manager
SOLICITORS:
N/A
Mr R K Graham, solicitor
SOLICITORS:
Abbott Tout
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Watts C
3 November 2005
10780 of 2005 - Project Venture Development No 11 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 two dwellings and to erect a nominally four-storey residential flat building comprising 16 units and basement car parking for 27 vehicles (amended to 29) at Pt 1, DP 310770 and Pt 2, DP 656052, being Nos 589 Pacific Highway & 32 Marian Street, Killara.
2 I visited the land in company with the parties on the morning of the first day of the hearing.
3 I have concluded that the application should succeed after being considered under s 79C of the Environmental Planning and Assessment Act 1979.
The land
4 The land is situated on the southeastern corner of the Pacific Highway and Marian Street, Killara. It is shown on the survey prepared by William L Backhouse Pty Limited and has a frontage to the Pacific Highway of 47.335m and a frontage to Marian Street of 35.615m excluding the corner rounding, [Note: Exhibit C]. The area is 1,933.8m2 by title and 1917.5m2 by calculation. The land slopes down from the corner at a level of 119.5m AHD to 116.6m AHD in Marian Street giving an overall fall of around 3m along the Marian Street frontage. The Pacific Highway frontage is relatively level at around 119.3m AHD. Along the fall line the slope of the land is around 9% and is not considered a steeply sloping parcel of land for the height controls under the Ku-ring-gai Planning Scheme Ordinance.
5 There are three large Blue Gums and one Cedar on the land that are visually significant in the streetscape.
6 The garage and driveway of the existing dwelling at No 32 Marian Street apparently, has been partly excavated into the landform. This is significant as in order to determine height in storeys and the perimeter wall height it is necessary to measure vertically from the natural ground line. The applicant argues that the natural ground line is to be determined by hypothetically infilling the driveway and garage of this dwelling.
Relevant planning controls
Ku-ring-gai Planning Scheme Ordinance, (KPSO) as amended 5 August, 2005, by Local Environmental Plan No 194, (LEP194)
7 Under the provisions of the KPSO 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 Clause 25I of the KPSO provides site requirements and development standards for multi-unit housing. Subclause (5) sets the maximum number of storeys for development based on site area. Sites with an area of 1,800m2 or more but less than 2,400m2 are limited to four storeys above ground level. Sites less than 1,800m2 are limited to three storeys and sites larger than 2400m2 are limited to 5 storeys. The subject site has an area of 1917.5m2 and so a four-storey height limit applies.
9 Clause 25I(7) of the KPSO provides:
- In Zone No 2(d3), where the maximum number of storeys permitted is attained, then the floor area of the top storey of a residential flat building of 3 storeys or more is not to exceed 60% of the total floor area of the storey immediately below it.
10 Clause 25I(8) of the KPSO provides a table that sets a maximum perimeter ceiling height of 10.3 metres for the storey below a top storey compliant with subclause (7).
11 Perimeter ceiling height is defined in cl 25B of the KPSO to mean:
- …the vertical distance measured between ground level at any point and the topmost point of any ceiling where it meets, or where a horizontal projection of the ceiling would meet, any external or enclosing wall of the building.
12 Ground level means:
- …the natural level of the ground before the erection of any building or carrying out of any work.
13 Clause 25J of the KPSO provides:
(2) Consent must not be granted to development that will result in more than one dwelling on a site unless:
(3) All car parking provided must not be open-air car parking unless it is for visitors, in which case it must be constructed with water-permeable paving unless the paving is directly above part of the basement.
14 Clause 25M of the KPSO provides:
- Non-discretionary development standards for residential flat buildings in Zone No 2(d3)
Pursuant to section 79C(6)(b) of the Act, the development standards for number of storeys, site coverage, landscaping and building set back that are set by this Part are identified as non-discretionary development standards for development for the purpose of a residential flat building on land within Zone No 2(d3).
15 Section 79C(6)(b) of the Environmental Planning and Assessment Act 1979, provides:
- …non-discretionary development standards means development standards that are identified in an environmental planning instrument or a regulation as non-discretionary development standards.
16 Section 79C(2) of the Act provides:
- if an environmental planning instrument or a regulation contains non-discretionary development standards and development, not being complying development, the subject of a development application complies with those standards, the consent authority:
- (a) is not entitled to take those standards into further consideration in determining the development application, and
(b) must not refuse the application on the ground that the development does not comply with those standards, and
(c) must not impose a condition of consent that has the same, or substantially the same, effect as those standards but is more onerous than those standards,
17 The relevant principles of SEPP65 are:
- Principle 1: Context
- Good design responds and contributes to its context. Context can be defined as the key natural and built features of an area.
Responding to context involves identifying the desirable elements of a location’s current character or, in the case of precincts undergoing a transition, the desired future character as stated in planning and design policies. New buildings will thereby contribute to the quality and identity of the area. [Court’s emphasis added].
- Good design provides an appropriate scale in terms of the bulk and height that suits the scale of the street and the surrounding buildings.
Establishing an appropriate scale requires a considered response to the scale of existing development. In precincts undergoing a transition, proposed bulk and height needs to achieve the scale identified for the desired future character of the area.
- Good design achieves an appropriate built form for a site and the building’s purpose, in terms of building alignments, proportions, building type and the manipulation of building elements.
Appropriate built form defines the public domain, contributes to the character of streetscapes and parks, including their views and vistas, and provides internal amenity and outlook.
- Good design provides amenity through the physical, spatial and environmental quality of a development.
Optimising amenity requires appropriate room dimensions and shapes, access to sunlight, natural ventilation, visual and acoustic privacy, storage, indoor and outdoor space, efficient layouts and service areas, outlook and ease of access for all age groups and degrees of mobility.
- Quality aesthetics require the appropriate composition of building elements, textures, materials and colours and reflect the use, internal design and structure of the development. Aesthetics should respond to the environment and context, particularly to desirable elements of the existing streetscape or, in precincts undergoing transition, contribute to the desired future character of the area.
18 DCP47 is relevant to Conditions 50 and 82 and the provision of water saving devices and compliance with Basix.
Development Control Plan 55- Ku-ring-gai Multi Unit Housing, (DCP55)
19 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.
20 Section 4.3 Setbacks of DCP55, states:
- This section of the DCP provides front, side and rear setback controls designed to achieve site-responsive development at a scale which is compatible with the local context by control of visual impacts relating to height and bulk;
· 4.3 Setbacks: with reference to C1-C6 p 29-30:
- C-1 The building must be setback the following distances from the boundary (refer to Figure 4)
- C-2 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:
- C-3 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.
C-4 The following elements may encroach into the setback:
- C-5 On corner sites the minimum street boundary setback in C-1 and C-2 above shall apply on both street frontages.
C-6 The building alignment shall be parallel to the street alignment.
21 There are many requirements set out in DCP55 and for a more detailed analysis reference should be made to the instrument.
The proposal and its history
22 Development application No 1415/04 was lodged with the respondent council on 29 December 2004 to demolish the existing dwellings and to erect a residential flat building on the land.
23 The proposal is four storeys high and comprises:
Level Configuration Basement
Level 113 resident car spaces and 15 resident storage bays Basement
Level 210 resident car spaces, 4 visitor car spaces, 1 resident storage bay, garbage storage room and service/ancillary areas Ground Floor 2 x three bedroom units, 2 x two bedroom units and 1 x one bedroom unit (Unit 2 is a two storey unit also occupying part of
the first floor)First Floor 2 x three bedroom units, 1 x two bedroom unit and 1 x one bedroom unit Second Floor 2 x three bedroom units, 1 x two bedroom unit and 1 x one bedroom unit Third Floor 3 x three bedroom units (Unit 11 is a two storey unit also occupying part of the second floor)
24 The proposal is described in the architectural plans prepared by Ray Fitz-Gibbon architects dated August 2004 in Exhibit A. Trish Dobson prepared landscape plans in Exhibit B.
Notification
25 The application was notified to nearby owners and occupants and the council received five (5) submissions in response to notification of the original proposal, dated 29 December 2004. These submissions raised:
· traffic implications (car parking) pressure on existing infrastructure;
· property values;
· inadequate setbacks;
· non-compliance with development controls;
· tree removal;
· noise;
· heritage impacts; and
· number of storeys.
26 Regarding traffic implications the council’s development engineer, Ms K Hawken, assessed the proposal to have no adverse impacts on the surrounding road network. The applicant amended the basement to provide for 29 car parking spaces and resolved the issue regarding the extent of car parking.
27 Regarding pressure on existing infrastructure, the council’s development engineer, Ms Hawken, found the proposal to be satisfactory, subject to conditions.
28 Regarding property values, Mr Layman the applicant’s town-planning expert agreed with the council’s reporting officer, was that this is not a valid planning consideration. I accept that evidence.
29 The council's landscape architect raised no objection to the removal of nominated trees. I am satisfied that significant trees are retained, maintaining the desired future landscape character.
30 Regarding noise, the council officer's report considered that “…to ensure residential amenity, consent conditions will require certification that acoustic levels within units and noise emissions from the development are of an appropriate standard.” Noise impacts from the Pacific Highway upon the development have been the subject of a report by Bassett Acoustics (18 December 2004) that concluded:
- There are no acoustic site conditions that would preclude the proposed development from complying with the relevant noise criteria identified in this report. Road traffic noise intrusion into the residential development can be adequately attenuated by acoustically designed facade treatments and noise emission from the site can be controlled by standard noise control techniques.
31 With regard to the impact on the heritage item located opposite at No 39 Marian Street the council officer found that these would be minimised by the generous separation distance between No 39 Marian Street and the proposal. I accept that evidence.
The council’s decision
32 When the appeal was filed the council had not formally determined the application however, at ordinary meeting of the council on 6 September 2005 the recommendation for refusal was adopted. The reasons for refusal are reflected in the issues.
The hearing
33 The appeal was filed on 15 July 2005 and is a deemed refusal.
34 Mr S Layman was the applicant’s town planner.
35 Ms S Watson, Executive Planner, Ku-ring-gai Council, prepared a Statement of Basic Facts dated 27 July 2005 that describes the land, locality, site history, the proposal, the statutory controls, and the actions taken by the council.
The issues
36 Prior to the hearing the council filed a statement of issues, [Note: Exhibit 2].
- Issue 1 - Streetscape impact
The proposal is inconsistent with Clause 25I(1)(a), (c), (d) and (e) of Part IIIA of the Ku-ring-gai Planning Scheme Ordinance in that the proposal will have a detrimental impact on the residential character of the area and adjoining properties due to the scale of the built form, lack of area proposed for landscaping and minimum setbacks proposed.
- Issue 2 - Impact on trees
- The proposed development will result in adverse impacts upon existing trees on the site and is therefore, inconsistent with the objectives set out in Clause 25D(2)(b) of the KPSO (Part IIIA).
Particulars
- Issue 3 - Density
- The proposal constitutes an overdevelopment of the site and is not in keeping with the optimum capacity of the site, future landscape or built character of the area.
Particulars
The application proposes an overall floor space ratio of 1.02:1. This is in breach of Clause 4.2 C-4, which limits the maximum floor space ratio to 1:1. The floor space ratio indicates development of an excessive bulk and scale and greater than that anticipated by the relevant planning instruments.
- The application fails to provide a high level of residential amenity to future residents of the development and the occupants of the adjoining properties.
Particulars
- Issue 5 - Parking and Vehicular Access
- The application fails to provide adequate on-site basement and visitor car parking.
Particulars
(a) The development is located in excess of 400m from the entrance to Killara Station and must provide a total of 29 car parking spaces (25 resident spaces & 4 visitor spaces) in accordance with Clause 25J of LEP 194. The proposal provides car parking spaces, with a car parking shortfall of three spaces and requires a SEPP No 1 objection accordingly.
- Issue 6 - Public Interest
- Matters raised by residents in their submissions to Council.
37 The principal contested issues were:
· Height in storeys; and
· Perimeter ceiling height.
The evidence and findings
Height in storeys
38 Clause 25I of the KPSO provides site requirements and development standards for multi-unit housing. Subclause (5) sets the maximum number of storeys for development according to site area. A site with an area of 1,800m2 or more but less than 2,400m2 is limited in height to 4 storeys and this control applies to the subject land with an area of 1,917.8m2.
39 There was no dispute between the parties that the area of the top storey of the proposal complies with 25I(7) of the KPSO in that it is around 60% of the area of the total floor below.
40 Clause 25I(8) of the KPSO provides a table that sets a maximum perimeter ceiling height of 10.3m for the storey below a top storey compliant with subclause (7).
41 It was agreed that the benefit of cl 25K of the KPSO for steep sloping sites does not apply.
42 The proposal is for nominally a four-storey high building, and the applicant suggests that in appearance it might better be described as three storeys with a penthouse, but agrees that there would be four habitable storeys above the basement car park. The alleged non-compliance with the height in storeys, claimed in the issue, arises out of the height of the basement storey above ground level.
43 Clause 25I(9) of the KPSO provides:
- Any storey which is used exclusively for car parking, storage or plant or a combination of them in accordance with the requirements of this Ordinance and no part of which (including any wall or ceiling which encloses or defines the storey) is more than 1.2 metres above ground level, is not to be counted as a storey for the purposes of the Table to subclause (8).
44 Clause 25B of the KPSO provides definitions relating to zone 2(d3) and defines ‘ground level’ to mean “…the natural level of the ground before the erection of any building or carrying out of any work.”
45 Mr Layman stated, [Note: Exhibit p 10]:
- The claims made in the particulars are based on existing ground levels determined by survey. However, it is apparent that the existing levels in the vicinity of the claimed breaches are not the natural levels of the ground prior to any works.
The site survey clearly shows that natural ground levels have been altered to accommodate the existing driveway and swimming pool. This is evidenced by the brick retaining wall, some 750mm high, to the west of the driveway and by the retaining wall, some 300mm high to the south of the swimming pool. Examination of existing ground levels adjoining the eastern boundary suggests that natural ground levels adjoining the eastern side of the proposed basement would have been no lower than RL 116.75 and hence the proposal is compliant re basement height.
However, if the existing ground level is taken to be the "ground level" the height of the basement storey projects above the existing ground level by approximately 1560mm, 360 mm in excess of the control in clause 251(9). Seen from Marian Street the excess is slightly less, about 310mm.
There is a difference of 1.2m between the top of kerb in Marian Street nearest the breach (RL 116.75) and the ceiling of the carpark (RL 117.95) - i.e. the breach point is low relative to the street.
Therefore while there is a numerical breach in basement ceiling height of up to 360mm near the north-eastern corner of the subject site, it is not visually prominent from Marian Street. If existing levels are "ground levels" pursuant to clause 25B of the KPSO, the variation to the development standard for storey height requires an objection pursuant to SEPP 1. This is provided at Appendix B. The SEPP 1 objection concludes that strict numerical compliance with the development standard is unreasonable and unnecessary in the circumstances.
46 The level of the driveway and garage of the existing dwelling at No 32 Marian Street were observed on the site inspection.
47 Ms Watson and Mr Layman agreed that the ceiling of the basement car park would be around 960mm above the ground level as defined, thus it was agreed the proposal would be four storeys high and would thus comply with the KPSO as amended by LEP149, [Note: Exhibit 1, p1].
48 The applicant’s SEPP1 objection to height in storeys was not required. Thus, there is no issue between the parties in this regard.
Perimeter ceiling height
49 Clause 25I(8) of the KPSO sets a maximum perimeter ceiling of building (not including top storey with floor area reduced because of subclause (7) or attics, where applicable) of 10.3m for sites with a limit of four storeys. The calculation of maximum height in storeys in this clause does not include a “top storey reduced because of subclause (7) or attics, where applicable.” Therefore the evidence of the applicant was that the perimeter ceiling height standard applies to the third storey and not the top storey (which is reduced in accordance with subclause 7).
50 The particulars supplied by the council in support of the issues, refer to a breach of 470mm in perimeter ceiling height. The proposed perimeter ceiling level would be 127.16m AHD as calculated by Mr Layman. The worst-case would be where the existing ground level is 116.39m AHD almost directly below the northeast corner of the third floor (‘level 5’), giving a difference of 470mm. However, Mr Layman pointed out it is apparent by observing the height of the nearby brick retaining wall to the driveway that natural ground levels were in the past some 750mm higher. Accordingly, Mr Layman stated that if his analysis were accepted there would be no breach of the perimeter ceiling height at the northeast corner of the third floor and a SEPP 1 objection would not be required.
51 Mr Layman ascertained that difference in level from 116.86m AHD and existing ground levels, tapers down to about 150mm at a distance of 20m from the northeast corner of the third floor, at the edge of the swimming pool area. However, Mr Layman stated it is apparent from the nearby boundary retaining wall that natural ground levels were some 300 mm higher, prior to the existing pool construction. If that were accepted Mr Layman was of the opinion that there would be no breach of the perimeter ceiling height on the eastern elevation and a SEPP 1 objection would not be required.
52 Ms Watson and Mr Layman agreed that the perimeter ceiling height of the proposal would not be greater than 10.17m above ground level as defined. Thus there is no need of an SEPP1 objection and there remains no issue between the parties in this regard, [Note: Exhibit 1 p 1].
Other matters
Streetscape impact
53 In this regard Mr Layman stated:
- It would seem to me that a sound planning outcome would be to allow a relaxation of the street frontage setback on the secondary frontage, provided landscape character is maintained. An advantage of a street frontage is that the private landscaping in the front setback might be supplemented by planting in the Council verge creating a stronger landscape effect. Large existing and/or proposed endemic trees planted in the setback have space for the canopy to extend over both the private and public land. Also large trees that grow or can grow in the Council verge have space to grow. Therefore there is less need for increased secondary setback to the Pacific Highway in my view.
54 Ms Watson and Mr Layman agreed that the objectives of the setback controls are met despite there being a numerical non-compliance. I accept that the streetscape impact of the proposal would be acceptable and would not warrant refusal of the application.
Impact on trees
55 Ms M Howden prepared a report entitled ‘Tree Assessment & Report Impact of Proposed Development at 32 Marian Street and 589 Pacific Highway Killara’. This report considered the impact of the proposal on trees to be retained and concluded:
- Provided that Tree Protection Measures are implemented and works are undertaken in a sensitive manner, in particular access and works within the vicinity of Tree No 1, 2 & 3, the proposed development will not have a significant impact on the long-term health of trees identified as being retained:
56 This report by Ms Howden required in respect of the retention of Trees 1, 2 & 3 that “…the proposed floor level of apartments 1, 2 and 3 outside the basement level is to be above existing ground levels and constructed on piers and above ground beams & slab.” The applicant responded by setting the ground floor level at 118.2m AHD which raised the basement ceiling height and affected the height of the building in storeys and the perimeter wall height.
57 Mr D Ford, the Court-appointed expert for arboricultural matters, was satisfied that the proposed basement would be set sufficiently distant from the three Blue Gums and the Cedar to ensure their health and vigour of these trees, provided site works are carried out under reasonable supervision and control. His report was tendered, [Note: Exhibit 8]
58 I am satisfied this issue is not one that would cause me to refuse the application.
Density
59 Ms Watson and Mr Layman agreed that there remains an excess of 30.49m2 or around 2% of floor space. This was based on a site coverage of 35%. There was no issue between the parties in this respect.
Residential amenity
60 Ms Watson and Mr Layman agreed that residential amenity is not a reason for refusal of the application, [Note: Exhibit 1 p 2]. I accept that evidence.
Parking and vehicular access
61 If the land were considered to be within 400m of a pedestrian entry to a railway station (Killara Station), the proposal would generate a requirement of 16 car parking spaces. If the proposal were considered to be more than 400m from Killara Station entry, 25 resident car parking spaces and 4 visitor spaces would be generated.
62 Prior to the hearing the proposal was amended to provide 29 car parking car spaces. Level 1 has been amended to provide two stacked car parking spaces, preferably allocated to a three-bedroom apartment, requiring 2 spaces. Thus the parties are agreed that the proposal would now comply with cl 25J of the KPSO (as amended by LEP 194) and no SEPP 1 objection is required.
Public interest
63 Ms Watson and Mr Layman agreed that this would not be a reason for refusal, [Note: Exhibit 1 p 2].
64 For the above reasons, the appeal is upheld.
Conditions
65 The conditions are those in Exhibit 5 as amended during the hearing and with the condition prepared by Mr Ford added. Conditions 74 and 75 that would have required cash guarantees were amended to accord with the decision of Moore C in Falcomata v Ku-ring-gai [2005] NSWLEC 459.
Costs
66 As there were no submissions made in respect of costs, each party should pay its own costs. I so order.
Orders
67 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.
2. Development application No 1415/04 lodged with the respondent council on 29 December 2004 to demolish two dwellings and to erect a four-storey residential flat building comprising 16 units and basement car parking for 29 vehicles at Pt 1, DP 310770 and Pt 2, DP 656052, being Nos 589 Pacific Highway & 32 Marian Street, Killara, be approved subject to Conditions 1 to 118 in Annexure A.
3. No costs are awarded.
4. Liberty to restore if required by either party in respect of conditions.
5. The exhibits with the exception of Exhibits A, B, C, 1, 2, 3 and 9 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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