Pyramid Pacific Pty Ltd v Ku-Ring-Gai Council

[2006] NSWLEC 220

Land and Environment Court

of New South Wales

CITATION:	Pyramid Pacific Pty Ltd v Ku-Ring-Gai Council [2006] NSWLEC 220
PARTIES:	APPLICANT Pyramid Pacific Pty Ltd RESPONDENT Ku-Ring-Gai Council
FILE NUMBER(S):	11068 of 2005
CORAM:	Tuor C
KEY ISSUES:	Development Application :- residential flat building whether consistent with desired future character impact on residential amenity, overshadowing, privacy, bulk and scale, loss of trees traffic impact on Blue Gum High Forest and Blue Gum Creek
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Environment Protection and Biodiversity Conservation Act 1999. Ku-ring-gai Planning Scheme Ordinance Local Environmental Plan 194 State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development
CASES CITED:	Lexington 88 v Ku-ring-gai Council [2005] NSWLEC 635
DATES OF HEARING:	16 &17/02/2006
DATE OF JUDGMENT:	05/03/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr D Baird, solicitor of Maddocks Lawyers RESPONDENT Mr P Rigg, solicitor of Deacons Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

3 May 2006

11068 of 2005 Pyramid Pacific Pty Ltd v Ku-ring-gai Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Ku-ring-gai Council (the council) of DA 1333/04 for the demolition of all improvements and the construction of a residential flat building at 8-12 Nola Road, Roseville (the site).

The site and its context

2 The site comprises three residential allotments being lot 4 DP 9864 (8 Nola Road), lot 5 DP 9864 (10 Nola Road) and lot 6 DP 9864 (12 Nola Road). Each lot is developed with a detached dwelling and associated structures in established landscape settings with mature trees and shrubs. The site is irregular in shape with a combined area of 3270 sqm. Frontages to Nola Road and the pedestrian walkway leading to Corona Avenue are 18.3m and 40.3m respectively. The northern boundary is 43.8m, the eastern boundary is 81.7m and the southern boundary is 81.7m. The site slopes steeply (22%) from east to west but has been substantially modified to accommodate the existing structures on the site.

3 The site is benefited by a right of way, 3.05m wide, over 4 MacLaurin Parade. Two drainage easements, each 1.5m wide burden the site along its northern and southern boundaries

4 Adjoining development to the north is a single storey house (4A MacLaurin Parade) and a three storey semi detached dwelling (6 and 6A MacLaurin Parade or 6 Nola Road): to the east is two residential flat buildings (4 MacLaurin Parade and 26a Pacific Highway): to the south is two storey townhouses (5 Corona Avenue) and to the west, across the pedestrian lane, is a three storey townhouse development (7 Nola Road) which adjoins a detached dwelling (5 Nola Road).

5 Adjoining the site in Nola Road are a mature Date Palm and Blue Gum. The vegetation association for the site is Blue Gum High Forest, however, only one of these species is located on the front boundary of the site. A number of Blue Gums occur in the surrounding area that is characterised by buildings in landscaped settings with an upper storey of large canopy trees. The reservation for Nola Road is about 20m wide, however it has a carriageway of only about 4m. The remainder of the road reservation is at a lower level and is heavily treed.

Proposal and its history

6 The application was lodged on 14 December 2004. Council notified the application to adjoining residents and received 58 submissions. It was referred to Council’s consultant Urban Designer who supported the proposal. Council considered reports on 28 June 2005 and 2 August 2005 recommending approval of the application. Council approved the application but it was subsequently the subject of a recision motion and was refused on 23 August 2005. The applicant lodged a class 1 appeal on 19 September 2005 against council’s refusal of the application.

7 Amended plans were prepared in response to the oral report of Mr R Dickson, the Court appointed expert dealing with architectural, planning and urban design issues in the appeal. The amended application is the subject of the appeal and as described in the Statement of Basic Facts. The application seeks the following:

· Demolition of existing dwellings and associated structures on site;

· Construction of a five storey residential flat building of 32 units configured in three staggered and connected pavilions, comprising 14 x 2 bedroom apartments and 18 x 3 bedroom apartments;

· A total of 58 parking spaces, consisting of the 47 resident spaces, 3 disabled and 8 visitor spaces over 2 basement levels;

· Vehicular access from Nola Road in the north corner of the site;

· Disposal of stormwater to Nola Road incorporating a retention and detention system with water reuse for toilet flushing, irrigation and laundries.

· Associated landscaping.

Planning Framework

8 The site is zoned Residential 2(d3) under the Ku-ring-gai Planning Scheme Ordinance as amended by Local Environmental Plan 194 (LEP194). The proposal is permissible with consent. Adjoining land is also zoned 2(d3) with the exception of adjoining land along part of the east boundary (4 MacLaurin Parade and 26a Pacific Highway) which is zoned 2(d). Residential flat buildings are also permitted within the 2(d) zone.

9 Clause 25I provides development standards and site requirements for multi-unit housing. The relevant development standards relate to deep soil landscaping, minimum street frontages, maximum number of storeys, maximum site coverage, floor area for top storey and car parking. There was no dispute that the proposal satisfied the development standards in cl 25I.

10 Clause 25I(1) provides a number of matters that have to be taken into account before consent is granted. Mr Rigg’s submission for the council, was that the development did not meet 25l(1)(b) which requires a consideration of:

The impact of any overshadowing, and any loss of privacy and loss of outlook, likely to be caused by the proposed development.

11 Clause 25M provides that:

Pursuant to s79C (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).

12 Mr Rigg submitted that while the application could not be refused on the basis of compliance with these standards it could be refused if it resulted in unacceptable impacts.

13 Development Control Plan No. 55 - Ku-ring-gai Multi Unit Housing Railway/ Pacific Highway Corridor and St Ives Centre (DCP 55) became effective on 22 December 2004. Clause 2.7 states that the DCP applies to applications made after the date of commencement. The subject application was lodged before that date.

14 State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development (SEPP65) and the Residential Flat Design Code (RFDC) also apply.

The issues and evidence

15 The amended Statement of Issues before the Court contained ten issues. Issues 5, 7 and 8 were not pressed by Council. A number of the other issues referred to the proposal’s non compliance with DCP 55. Mr Baird, for the applicant objected to inclusion of these issues. In the hearing I determined that these issues would be addressed in the same manner as articulated by Roseth SC and Brown C in Lexington 88 v Ku-ring-gai Council [2005] NSWLEC 635 who considered the relevance of DCP 55 in similar circumstances and stated that:

The Statement of Issues referred in several places to DCP 55 despite cl2.7, which exempts the subject application. For applications lodged before 22 December 2004 the significance of DCP 55 is that it will apply to other similarly zoned sites in the vicinity. It is reasonable to assume that those sites will be developed in accordance with DCP 55. While DCP 55 does not apply to the subject application, it gives an indication of the future character of surrounding development on similarly zoned land.

16 The remaining issues raised by Council can be summarised as whether the proposal is inconsistent with the desired future character for the area.

17 The residents considered that the proposal did not adequately address cl 25l(1)(e) that is “the desirability of adequate landscaping so the built form does not dominate the landscape” They considered it did not meet the objectives of cl 25C(1)(c) that is “to encourage environmental, economic, social and physical well being so that Ku-ring-gai continues to be an enjoyable place to live in harmony with the environment”. A number of residents attended the site inspection and the following residents spoke on their behalf. The efficient manner in which the residents organised their submissions was of assistance to the Court.

18 Mrs B Narula, 5 Nola Road, addressed the unique character of Nola Road, being a narrow roadway in a bush setting, and expressed concern about the impact of additional traffic using the road. She stated that the narrowness of the road and the lack of footpaths is already a safety issue which will be exacerbated by medium density development. She considered that the area was unsuited to such development because even though it was in close proximity to the railway station, due to the steepness of MacLaurin Parade, access to the station was difficult.

19 Mrs Narula was also concerned on the impact of the development on the Canary Island Palm and Sydney Blue in the centre of Nola Road and Blue Gum High Forest community in the area.

20 Ms P Layton, 9/26a Pacific Highway addressed the issue of traffic in the area particularly access to MacLaurin Parade from the Pacific Highway which provides the only access to a number of streets in the area. She considered that this already unsatisfactory situation will be exacerbated by the proposed development and other development in the area.

21 Ms Layton also spoke about the concerns of the residents of MacLaurin Court, (26a Pacific Highway) specifically the length of the proposed building which faces MacLaurin Court stating that its full length would be visible to nearly 60% of the units. She was concerned that there would be a loss of outlook to the units at the rear of MacLaurin Court, which would be exacerbated by the removal of trees on the site and a concern that excavation on the site would damage the conifer trees on the MacLaurin Court side of the boundary. She stated that that as the living areas of the proposed units face MacLaurin Court there would be unacceptable noise impacts.

22 Mr B Kricker, 6A MacLaurin Parade was concerned about the height of the proposal and its visibility in the area above the tree canopy.

23 Mr B Gunn, 6 MacLaurin Parade was concerned about the impact of the proposal from his adjoining property. He considered that the setback and bulk of the proposal to be unacceptable, particularly the blank wall which would face his living area and terrace that would not be adequately screened by landscaping.

24 Mr B Banning, 5 Corona Avenue, spoke on behalf of the owner of the town houses at this address. The main concern was the overshadowing impact and the setback and length of the wall which would face the townhouses.

25 Ms J Richardson, 1/7 Nola Road was concerned about the collection of garbage from the development. In response, the applicant advised that the collection would be by a private contractor using smaller trucks which would not necessitate garbage trucks reversing down Nola Road or require garbage bins to be wheeled to the end of the road, as currently occurs.

26 Mr G Richardson, 1/7 Nola Road, commented on the proposed conditions and suggested changes. These changes have generally been incorporated into the draft conditions of consent.

27 Mr T Johnson, 3 Poply Avenue, reiterated the concerns about traffic in the area.

28 Mr Dickson provided a statement of evidence. Mr L Hunt, the applicant’s planner, provided a statement of evidence that addressed matters raised by Mr Dickson. Mr Dickson, Mr Hunt and Mr G Lake, the architect for the proposal, prepared a joint statement and provided concurrent evidence to assist the Court.

Future character of the area

29 The experts agreed that the area was in a state of transition and that the desired future character was that envisaged by the planning controls in LEP 194 and DCP 55. This future character was at variance with the existing character of Nola Road of predominantly detached dwellings, although the future character would relate more closely to the larger townhouse development at 7 Nola Road and the residential flat buildings to the east.

30 The experts agreed that the proposal was of a height, bulk and form that was consistent with the desired future character. Mr Dickson stated that the proposal complied with the requirements of LEP 194 and that the areas of non compliance with DCP 55 were not such that would impact on the ability of future development on adjoining sites to comply with DCP 55. Mr Dickson considered that the extent of tree retention, including the additional trees along the east boundary, and proposed landscaping would provide for a building in a landscaped setting that was not be out of character with the area. He stated that:

The amended landscape design to the front portions of the site provide for an appropriate transition between the unstructured, semi naturalistic nature of the streetscape to the structured, more formalised facades of the buildings.

31 While Mr Dickson considered the bulk of the building to be acceptable he recommended that the planter and associated parapet could be removed. This would lower the parapet by about 600mm. Mr Lake did not support this change as it would require the redesign of the fire stairs and result in these projecting beyond the parapet line and expose more of the walls of level 4. He considered that a reduction of only about 180m could be achieved and stated that:

the small reduction in parapet would have no real impact on the overall scale of the building yet would have a negative impact on the proposed architectural form.

32 I accept Mr Lake’s evidence that the deletion of the planter boxes and reduction in parapet height would not significantly reduce the bulk of the building sufficient to warrant an amendment to the plans. A reduction in the parapet would expose more of the level 4 walls. This would result in this level reading more as a storey to the building whereas, as currently proposed, the combined effect of the setback, planter box and parapet result in this level appearing as a secondary, less dominant structure.

33 The residents were concerned that the height of the building would be above the tree canopy and result in the built form dominating over the landscape. However, the proposal will be of a height, bulk and scale that is different to the character of the existing dwellings in Nola Road. The question is whether this change in character is one anticipated by the planning controls. The evidence of the experts is that the proposal is consistent with the desired future character that the planning controls envisage. LEP 1994 permits a building of the height and bulk proposed. The proposal complies with the controls in LEP 1994 which are non discretionary. The impacts of the development are not beyond those which are reasonably to be expected by a development which complies with these controls and as such there is no basis to refuse the application.

34 The site coverage of the building is 32% and provides about 50% deep soil landscaped area. The only significant Sydney Blue Gum is to be retained and the landscape plan provides for seven additional Sydney Blue Gums and four Blackbutts which attain a height of over 30m. In addition, a number of trees between 10m to 15m are proposed as well as lower storey planting. In response to the residents concern, additional trees are to be retained along the eastern boundary to screen the development while the additional landscape is established. I am satisfied that the implementation of this plan will ensure that the proposal does not dominate the landscape and is consistent with the requirements of cl 25l(1)(e) and cl 25C(1)(c).

Impact on adjoining properties

35 Mr Dickson’s main concern was the likely impact of the proposal on the solar access to the adjoining townhouse development at 5 Corona Avenue, and particularly the western most townhouse (townhouse 4). In his final report Mr Dickson had requested further information on this impact, which was submitted on the day of the hearing. The experts considered this information and concurred that acceptable solar access would be achieved to the glazing and living room and that this met the requirements of AMCORD.

36 In relation to the overshadowing impact on private open space, the open space of town house 4 varies in width between 3.8m and 5.5m. The experts agreed that there would be no significant impact on solar access to the open space up until 10.30 in midwinter. After this time part of the area would remain in sun until about 11.30 and would be shaded until about 3pm. They agreed that more than three hours would be achieved but that there would be a reduction in the solar access currently received. The experts noted that the overshadowing drawings do not show the impact on the area resulting from the existing tennis court fence. The fence is proposed to be removed and replaced with a 1.6m high fence.

37 To reduce the overshadowing impact, Mr Dickson considered that the proposed Sydney Blue Gums should be replaced with the smaller ornamental pear trees, which grow up to 6m. He also considered that the reduction in the parapet height would reduce the overshadowing. Mr Lake raised no objection to the replacement trees but disagreed that a lower parapet would improve solar access as the shadow in mid winter is cast by the eaves line to level 4.

38 Mr Hunt stated that 5 Corona Road is also zoned 2(d3) and although the townhouse development is recent, both he and Mr Dickson considered it reasonable to assume that it may be a development site in the future due to the increased potential under LEP194.

39 I find that the overshadowing impacts of the proposal are acceptable and do not require further amendment to either the landscaping or the parapet. The proposal complies wit AMCORD and the impacts are reasonable to expect in an area zoned for higher density development. The area is characterised by Blue Gum forest and it is appropriate that the building be within this setting. The amended landscape plan (ex N) proposes a mixture of Blue Gum high forest association understorey species. These trees will also assist in screening and softening the bulk of the development. On balance I place more weight on the achievement of these objectives than on the marginal increase in solar access that may result from different trees which would provide significantly less screening of the development. I accept Mr Lake’s evidence in relation to the parapet that any marginal benefit in overshadowing does not warrant a change to the building.

40 The concerns of the residents of MacLaurin Court were addressed by amendments to the landscape plan to retain more trees along the common boundary (T24, T29, T30, T32 and T53). The amended plan was filed on 21 February 2006 and I have made this exhibit N. The evidence was that the excavation adjoining this boundary would not affect the existing Cyprus trees and conditions have been included to address the retention of these trees. This and the proposed landscaping will assist in screening the development.

41 In relation to the length of the façade I accept Mr Dickson’s evidence that the setbacks, staggering of the building and architectural treatment will break down the building mass and it will read more as three separate pavilions than one continuous building.

42 The elevation that faces MacLaurin Court has operable aluminium louvre screens to the balconies on levels 1-3. A condition has been imposed to require adjustable awnings to level 4 to improve the privacy between the proposal and the adjoining flats. I note that the building to building separation distance ranges from about 18.3m to 24.5m. Of itself this distance is sufficient to ensure reasonable acoustic and visual privacy between the development and MacLaurin Court.

43 The proposed development will change the outlook from 6 MacLaurin Parade however, I accept Mr Dickson’s evidence that this is reasonable given the planning controls. The proposal is setback a minimum of 8.8m from the terrace of 6 MacLaurin Parade and further to the living room. The building is angled away from the common boundary, increasing the setback and resulting it being read obliquely. The façade is broken up by the treatment of the brickwork, aluminium screens and glazing and is screened by landscaping. A condition has been imposed requiring translucent glazing to the study that could potentially overlook 6 MacLaurin Parade.

Traffic

44 The applicant submitted a traffic report with the application prepared by Colston Budd Hunt and Kafes. The council report of 28 June 2005 states that:

In terms of the impact of the development on the wider road network, this was determined by modelling the affected intersections and existing and post-development use, using the INTANAL program. The results contained within the traffic report show that the surrounding road network would continue to operate at a ‘good’ level of service post development.

This analysis was done without taking into account the effect of traffic flow on the Pacific Highway and the Boundary Street and Clanville Road intersections either side. A traffic study prepared by council for Special Area 1 in 2003 concludes instead that in the afternoon peak the Maclaurin Parade intersection is actually functioning at level of service F, (unsatisfactory) because of these constraints.

However, no measures are in place to offset the effects of development in this area, since major improvements to the Highway would be required, which is the responsibility of the Roads and Traffic Authority….

45 The residents raised concerns about the impact of this development and the cumulative impacts on traffic in the area. This was not raised as an issue by council. From the evidence, the proposal will generate a low level of additional traffic movements and therefore not exacerbate the existing road conditions. However, the cumulative impact of developments in the area and the need to contribute to any upgrade works through measures such as a s94 plan should be addressed at a strategic planning level by the council.

Nola Road

46 Council sought to impose condition requiring the upgrade and widening of Nola Road in accordance with a plan No.91-065.

47 Mr Baird objected to the imposition of this condition on the basis that the development of itself did not generate to the need for the work, he recognised that an incremental contribution would be appropriate but noted that there was no plan that apportioned works and that there were no works that could be undertaken individually.

48 Mr Dickson reviewed the plan and considered that the works proposed were inappropriate. He stated that:

The road reserve forms the most important element in the character of the precinct. The formation of an urban landscape plan is key need in this area.

49 Mr Dickson, considered that a plan should be prepared that recognised the importance of the road and proposed appropriate works. Any plan should be exhibited to enable public participation in the process and a reasonable apportionment of costs.

50 Council and the applicant agreed to the imposition of a condition requiring such a plan to be prepared. I note that the site of itself does not generate the need for works to upgrade the whole of Nola Road. However, it does generate some demand and there are two other sites in Nola Road that are identified as redevelopment sites. The traffic advice is that if developed the cumulative effect would result in a need to upgrade the road while recognising that “there is limited scope to provide road widening due to the difficult shoulder conditions/topography.” It is therefore imperative that an appropriate plan be adopted to ensure that the correct apportionment of works generated by these other developments is not missed as in this case.

Impact on Blue Gum High Forest and Blue Gum Creek

51 A Watercourse Vegetation Assessment was undertaken for the council by Ecological Australia in June 2005. This concluded that the proposal would “have a negligible impact on the habitat values within Nola Road”. The Department of the Environment and Heritage was consulted about the development and did not require referral under the Environment Protection and Biodiversity Conservation Act 1999.

Conditions

52 The main condition in dispute was Condition 74, which related to whether the lots should be consolidated prior to the issue of the construction certificate or the occupation certificate. Council considered the construction certificate would ensure the consolidation of the lots prior to any building being constructed and provided greater certainty. The applicant stated that the process to consolidate the lots could take time and should not be linked to the issue of the construction certificate as there was sufficient certainty if it were linked to the occupation certificate. I accept the applicant’s submission and have changed the condition accordingly.

53 Council submitted that landscape drawing DA02 Revision D should not form part of the approval as it required amendments being the replacement of 5 evergreen trees on the southern side of the building with deciduous trees and ground cover planting on top of the retaining wall located forward of the units.

54 I have already discussed the trees and consider the amended landscape plan reflects this decision. The ground cover planting is an appropriate amendment but does not warrant refusal of the plan. In addition it is appropriate that the landscape plan should provide details of the landscaping proposed or the planter boxes on level 4. I have amended the condition to reflect these changes.

55 Council and the applicant proposed different wording for condition 72 which does not change the substance of the condition. I have adopted council’s wording.

Orders

56 For the above reasons the Orders of the Court are:

1. The appeal is upheld.

2. The development application (DA 1333/04) for the demolition of all improvements and the construction of a residential flat building at 8-12 Nola Road, Roseville is approved subject to the conditions in Annexure “A”.

3. The exhibits, except exhibits B, N, 3, 4 and 6, may be returned.

__________________
Annelise Tuor
Commissioner of the Court