Quirante Holdings v Ku-Ring-Gai MC
[2004] NSWLEC 134
•03/16/2004
Land and Environment Court
of New South Wales
CITATION: Quirante Holdings v Ku-Ring-Gai MC [2004] NSWLEC 134 PARTIES: APPLICANT
Quirante Holdings Pty LtdRESPONDENT
Ku-Ring-Gai Municipal CouncilFILE NUMBER(S): 11324 of 2003 CORAM: Bly C KEY ISSUES: Development Application :- two storey attached dual occupancy - significant trees - private open space LEGISLATION CITED: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No. 53
Ku-ring-gai Planning Scheme OrdinanceCASES CITED: DATES OF HEARING: 15, 16/03/2004 EX TEMPORE
JUDGMENT DATE :03/16/2004 LEGAL REPRESENTATIVES: Maddocks
APPLICANT
Mr S Kondilios, solicitor
SOLICITORS
Maddocks
RESPONDENT
Ms M Hawley, solicitor
SOLICITORS
Phillips Fox
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
11324 of 2003
Bly C
16 March 2004
Quirante Holdings Pty Ltd
Applicant
v
Ku-ring-gai Council
Respondent
Judgment
1 . The appeal relates to Development Application No. 177/03 for a two storey attached dual occupancy development at 15 Pearson Avenue, Gordon.
2 . The subject trapezoidal shaped allotment is situated on the corner of Pearson Avenue and Burgoyne Street, and has an area of 803.2 m2. It is vacant and is occupied by extensive vegetation including numerous trees, some of which are significant. A steep embankment where much of the existing vegetation is located runs along the site road frontages. Below these embankments where the building is to be positioned, the site slopes generally to the northeast.
3 . The locality is characterised by attached dwelling houses on relatively large landscaped sites, many of which have significant trees.
4 . The site is zoned 2(c) Residential C under the Ku-Ring-Gai Planning Scheme Ordinance , wherein dual occupancy development is not listed as a permissible use in the 2(c) zone. However, as dwelling houses are permissible, State Environmental Planning Policy No. 53 is applicable, making the dual occupancy development as proposed permissible with development consent.
5 . The application was advertised and 5 neighbours lodged submissions in relation to the proposal. Included in those submissions were a number of objections relating to stormwater drainage, loss of significant trees and insufficient garden space, excessive cut and fill, loss of privacy, and excessive bulk and scale. Several of these and other residents explained their concerns during the site inspection.
6 . An additional matter of concern to at least one of these residents involved safety aspects relating to vehicular traffic entering and leaving the site from Pearson Avenue, in particular the unsatisfactory location of the proposed driveway from house No. 1.
7 . The application was refused by the council for reasons relating to loss of significant trees and vegetation, impacts on neighbouring properties in terms of visual and acoustic privacy, the inadequate provision of private open space, the absence of an adequate site analysis, the inappropriate shape and topography of the site for this form of development, and the proposal would constitute an overdevelopment of the site.
8 . Expert town planning evidence was given on behalf of the respondent Council by Ms S Robinson and on behalf of the applicant by Mr I Glendenning.
9 . A statement of issues containing nine separate issues was tendered. However, resulting from further consideration of the matter and changes to the proposal, the principal remaining issues were essentially twofold. The first issue was whether the development would provide adequate private open space for future occupants of the two dwellings. The second issue was whether the development will have an unsatisfactory impact on the character of the site and neighbouring area due to the loss of significant trees.
10 . The other issues that flow from these principal issues involve questions of whether the development is unsuitable for this site which is less than what might otherwise be required by the LEP and whether it would constitute an overdevelopment. I accept that the other issues involving the adequacy of the original site analysis was of lesser importance given the subsequent investigations into this proposal and the site. I am also satisfied that the issue of drainage which was of particular concern to the neighbours has been resolved on the basis of the proposed conditions of consent.
11 . As for the traffic issue raised by the neighbours, I understand their concerns. However, I cannot accept that these concerns would be critical to the application in the absence of any expert traffic evidence which might support that concern. In this regard I note that in terms of vehicle access to the site, council officers were of the opinion that egress and ingress is satisfactory.
12 . In relation to private open space, I have no difficulty accepting the evidence of Mr Glendenning that for house No. 2 this will be satisfactory, particularly in terms of orientation, solar access, area and access from the dwelling itself.
13 . As for dwelling No. 1, I also accept his evidence that the private open space will be satisfactory, taking now into account that an additional area to the south of the living room is to be provided in addition to that area provided to the north of the family room. Both of these areas have good access from living areas. The northern terrace, even though it will be the subject of some overshadowing from the boundary fence, will receive satisfactory solar access. It will have an area of at least 35 m2 including the landscaped areas adjacent to the fence. This area could be extended further to the west with appropriate retaining structures and landscaping. Whilst the southern area will receive little solar access in winter it can nevertheless provide a useful outdoor space in the summer, having an area of about 25 m2. Together, I accept that these two areas meet the requirements of Amcord.
14 . Considering the provision of private open space for both houses together with the extent of landscaped areas on the site as a whole, I am satisfied that the application should not be refused on this basis.
15 . In relation to the trees issue, an examination of Council’s dual occupancy development control code, particularly the aims in cl 1.2, reveals an emphasis on the need to retain and enhance existing tree canopies whilst broadening housing choices and making the efficient use of infrastructure and services. Weight can be given to this code in terms of the future character of the area, particularly in the light of council’s proposal to amend the planning scheme ordinance to so as to permit dual occupancy development.
16 . It is clear to me that the code should not be interpreted to mean that trees, even significant trees, should be retained at all costs. A balanced approach is required, taking into account not only existing vegetation but also the provision of well designed and landscaped housing development which makes efficient use of existing infrastructure. In this latter regard, the site is located within a short distance of a comprehensive shopping centre and the Gordon railway station.
17 . In relation to tree protection, my attention was drawn to the Ku-Ring-Gai urban conservation area study which is in the form of a draft report dated November 2001. Whilst this study does not apply to the subject land, it does recommend that areas beyond its ambit, including the subject locality, should be protected, particularly landscape features that contribute to the significance of the area. Particular reference is made to Sydney blue gum trees. In this context, Ms Robinson was especially concerned that the proposal would result in the removal of three trees being Nos. 3, 7 and 8 in Exhibit C. Trees 3 and 8 are Sydney blue gums and in her opinion are significant trees.
18 . She accepted that tree 8 being essentially in the centre of the site and notwithstanding its significance, was in effect an unreasonable impediment to the development of the site. Notwithstanding this, the three trees together make an important contribution to the streetscape character in this locality and together their removal would have a significant adverse impact on the site and the streetscape and character of this locality. The impact of just removing tree eight, whilst undesirable, could be accommodated. However, when the other trees are removed, the total impact on the existing corridor of significant trees is, in her opinion, unacceptable. Also, the provision of a new canopy tree on the site does not compensate for these losses.
19 . More generally, she made the point that the unsatisfactory site analysis did not give proper regard to these trees. Also, in terms of the character of the locality, she was concerned that site coverage of this development would be greater than that prevailing in the street block in which the site is located.
20 . In response, Mr Glendenning seemed to accept that the removal of these three trees would result in a significant loss of tree canopy, but this did not mean that the proposal should not be approved. He came to this conclusion for a number of reasons, including the provision of extensive landscaped areas, comprising about 55 % of the site and which will complement the landscape character of the surrounding area. Much of this landscaping will be in the considerable setback areas adjacent to the street frontages and will provide an appropriate benefit and response to the streetscape. In addition, replacement canopy trees will be provided.
21 . In relation to the landscape proposal, he pointed out that this will be subject to further approval by the council and will provide for an appropriate landscape setting for the development and long term landscape character of the area. More particularly, in relation to trees 3 and 8, it was his opinion that both of these trees comprised unreasonable constraints on the reasonable development of this allotment. Even with the removal tree 8, tree 3 would continue to impose an unreasonable constraint.
22 . In conclusion, I do not accept that because the site is smaller than the minimum lot size in the planning scheme ordinance that this should be determinative of this application or indeed determinative of whether or not a dual occupancy development can occur on this site. I note that the proposal complies with the site area and other numerical requirements of SEPP 53, these being relevant matters to be taken into account in dealing with the application on its merits.
23 . In relation to tree No. 3, I note that the location of this tree is immediately adjacent to house No. 2, about 7.5 m from the Burgoyne Street boundary of the site. If this tree were required to be retained, given its size, I agree with Mr Glendenning that there would be no building able to be positioned within about 5 m of its trunk, otherwise the development of the site would either impact the root system of this tree or would be complained about in relation to safety in the proximity of a dwelling. The consequence of this would be to require a setback considerably greater than appears to be common in the vicinity (from an examination of the aerial photographs) and I have decided that this would be unreasonable. Considering tree No. 7 in a similar manner, I have also decided that its retention would impose an unreasonable constraint on the development of this site.
24 . As I pointed out earlier, a balanced approach to this application is required. I am satisfied that from an urban design perspective, this development architecturally will be satisfactory as will its landscaped setting. The proposal will nevertheless result in the removal of significant trees which in turn will affect the character of the streetscape in this location. However, all things considered, I have not been persuaded that this impact warrants the refusal of the application.
25 . Finally, given what I have decided in relation to private open space and in relation to the significant trees, there being no other issue of significance, I cannot but agree with Mr Glendenning that the site is not too small for a dual occupancy development. In the circumstances, I accept that the proposal would not constitute an overdevelopment of the site.
1. The appeal is upheld.26 . The Orders of the Court are as follows:
2. Consent granted subject to the agreed conditions.
3. The exhibits, other than Exhibits A and 2, may be returned.
- ___________
T A Bly
Commissioner of the Court
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