Ray Fitz-Gibbon Architects Pty Limited v Ku-ring-gai Council

[2004] NSWLEC 224

Land and Environment Court

of New South Wales

CITATION:	Ray Fitz-Gibbon Architects Pty Limited v Ku-ring-gai Council [2004] NSWLEC 224
PARTIES:	APPLICANT Ray Fitz-Gibbon Architects Pty Limited RESPONDENT Ku-ring-gai Council
FILE NUMBER(S):	11494 of 2003
CORAM:	Brown C
KEY ISSUES:	Development Application :- demolition of existing dwelling - construction of housing for older people or people with a disability - streetscape/character
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Ku-ring-gai Planning Scheme Ordnance State Environmental Planning Policy No. 5 State Environmental Planning Policy (Seniors Living) 2004
CASES CITED:	Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46
DATES OF HEARING:	04-05/05/04
DATE OF JUDGMENT:	05/19/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr C McEwen, barrister SOLICITORS Staunton Beattie RESPONDENT Mr A Hudson, solicitor SOLICITORS Wilshire Webb

JUDGMENT:

1

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

11494 of 2003 Brown C 19 May 2004

Ray Fitz–Gibbon Architects Pty Limited
Applicant

v Ku-ring-gai Council
Respondent
Judgment


Introduction
1. This is an appeal against the refusal of Development Application No. 1032/03 by Ku-ring-gai Council (the council) for the demolition of an existing residence and erection of a housing development for older people of people with a disability at 55 Pentecost Avenue, Pymble (the subject site).

2. I record that a view of the subject site and surrounding area was undertaken on the morning of the first day of the hearing with representatives from both parties. Some local residents also provided evidence on their concerns at this time.

3. For reasons set out in the judgment I have concluded that the appeal should be upheld and development consent granted subject to conditions.


The subject site
4. The subject site comprises Lots 19, 20 and 21, Section 6 in DP 13451. It is generally rectangular with a frontage to Pentecost Avenue of 60.356 m, a rear boundary of 60.380 m and a depth of approximately 49.845 m giving a total site area of 2957.13 m2.

5. Development on the subject site consists of a large residential dwelling and a detached garage. The dwelling presents its major elevation to Pentecost Avenue. A range of vegetation types are scattered over the site.

6. The surrounding area consists of large residential dwellings and housing developments for older people or people with a disability. The rear boundary adjoins Pymble Golf Course.


The proposed development
7. The proposal seeks to demolish all existing structures and improvements on the subject site and construct 9 units for older people or people with a disability. The units are constructed over three levels, with each level containing three units. Each unit contains three bedrooms or two bedrooms and a sitting room. Carparking for 20 vehicles, including two visitor spaces, are located on the first level with access from Pentecost Avenue. Access to levels to two and three is provided via two lifts. The area around the proposed building and above the carpark is proposed to be landscaped.


Relevant planning controls
8. The subject site is zoned Residential 2(c) under the provisions of the Ku Ring Gai Planning Scheme Ordinance (the Ordinance). The proposed development is not a permissible use under the Ordinance but is permissible through the provisions of cl 4 of State Environmental Planning Policy No. 5 - Housing for Older People or People with a Disability (SEPP 5). While repealed at the time of the hearing, SEPP 5 continues to apply through the transitional provisions in cl 6 of State Environmental Planning Policy (Seniors Living) 2004.

9. There was agreement that the proposed development satisfied the quantitative and qualitative controls within SEPP 5 with the exception of the number of storeys (cl 13(2)(b), and density and scale (as expressed as a floor space ratio in cl 14(b)(i)) and neighbourhood amenity and streetscape (cl 25(a)).


The issues
10. The council filed an Amended Statement of Issues containing 14 issues. The issues not pressed by the council following further reports or the agreement on appropriate conditions were the adequacy of the proposed landscaping (Issues 5(i) and (iii)), the provision of water and sewer (Issue 6), vehicle access and parking (Issue 7), waste management (Issue 8), drainage (Issue 9) and geotechnical stability (Issue 10).

11. Mr Geoff Goodyer, a town planner, provided evidence for the council. In his assessment of the development application he concluded that the proposed development was satisfactory in relation to other issues raised by the council. These were visual and acoustic privacy (Issue 2), solar access (Issue 3), provision of landscaped areas (Issue 4) and preservation of existing vegetation (Issue 5(ii)).

12. The remaining issues can be grouped into the single issue of whether adequate regard has been given to neighbourhood amenity and streetscape (Issue 1). This issue includes the other remaining issues of number of storeys (Issues 2 and 14), floor space ratio (Issue 13) and some of the issues raised under the general issue of the public interest (Issue 11).

13. Further issues not raised by the council but by local residents are addressed separately. These relate to traffic and safety and construction impacts.

Neighbourhood amenity and streetscape
14. Clause 25 of SEPP 5 states that consent must not be granted unless the Court is satisfied that the proposed development demonstrates that adequate regard has been given to a number of principles. Clause 25(a) deals with neighbourhood amenity and streetscape. It states that the proposed development should "contribute to an attractive residential environment with the character and identity" (cl 25(a)(i)) and "where possible, maintain reasonable neighbourhood amenity and appropriate residential character by using building form and siting that relates to the sites land form" (cl 25(a)(iv)).

15. Mr Goodyers expert report expressed the view that the proposed development is not of good design. The proposed development is, in part, 3 storeys in height rather than 2 storeys and has a floor space ratio of 0. 59: 1 rather than 0.5: 1. It has an excessive building width of 47.1 m and extends across the entire width of the three allotments with the exception of the side setbacks of 3.4 m and 3.8 m. The existing dwelling on the subject site is larger than most dwellings in the area but still only has a width of approximately 31.5 m.

16. Concerns over the impact on the streetscape were raised by a number of residents in the submissions provided to the council when the development application was advertised. Mrs Wood of 10 Fairway Avenue and Mrs Kavanagh of 52 Pentecost Avenue provided their evidence at the time of the site view. Both expressed concern over the unacceptable impact on the character of the area.

17. During the proceedings, the applicant tendered amended plans that changed the roof form. The original plans provided for a pitched roof that extended the full length of the building. The amendments maintained a similar style roof but provided a break in the continuous roof form by creating two distinct areas with a separation of some 2.5 m.

18. Mr Goodyers initial concerns over the appearance of the building from Pentecost Avenue were not without some merit, as the general area has no similar expanses of roof form. In my view, the amended roof form significantly improves the streetscape appearance of the proposed building. The amendments remove the perception of bulk when viewed from most locations along Pentecost Avenue. When combined with the retention of a significant portion of the existing landscaping, the existing fencing and the provision of additional landscaping, the proposed development (through the amended roof design) demonstrates that adequate regard has been given to neighbourhood amenity and streetscape. I note Mr Goodyer, despite being given the opportunity, provided no further evidence on the amended roof design.

19. The changing character of the area was a matter raised by a number of residents. Mrs Kavanagh expressed a particular concern that her dwelling was largely surrounded by development for older persons or persons with a disability. It is clear from the site view that the character of the area is evolving with many of the large residential dwellings being replaced with developments for older persons or persons with a disability. The consequential effect is a change in the character of the area. With this change, is difficult to successfully argue that the proposed development does not contribute to the character of the area having a similar form to other new developments and satisfying the vast majority of the requirements in SEPP 5.

20. The departure from the requirements in SEPP 5 for floor space ratio is not, in my view sufficient to warrant the refusal of the development application. The requirement establishes a threshold level that, if met cannot be used as grounds to refuse the development application. An exceedance does not automatically lead to a refusal but generally a more rigorous assessment of the qualitative requirements in cl 25 of SEPP 5. In this regard, the proposed development was found to be acceptable.

21. The number of storeys is a development standard under cl 13 of SEPP 5. There was no dispute that the proposed development exceeded the two-storey requirement in cl 13(2)(b). Mr Ross Fleming, the applicant's town planner, provided an objection pursuant to State Environmental Planning Policy No. 1 - Development Standards (SEPP 1) to show why the development standard is unreasonable or unnecessary in this instance. He states that the SEPP 1 objection should be supported for a number of reasons including the physical appearance of a two-storey building, compliance with the height standard in SEPP 5, a lack of detrimental environmental consequences and the numerically small area of the breach. The area of the breach was shown a plan attached to the SEPP 1 objection.

22. As I understand, Mr Goodyer did not object to the SEPP 1 objection however it is necessary for the Court to make its own assessment. In this regard, and having considered the contents of the SEPP 1 objection and the matters set out in par 26 of Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46, I concur with the conclusions of Mr Fleming. Consequently, I find that compliance with the development standard is unreasonable and unnecessary in this instance and that the SEPP 1 objection is well founded.

23. While not pressed as an issue, the location of the garbage facilities also requires consideration under SEPP 1 as the proposed garbage facilities are located in the basement area and not "outside" as required by cl 13A(21). Having considered the contents of the SEPP 1 objection I concur with the conclusions of Mr Fleming and find that compliance with the development standard is unreasonable and unnecessary in this instance and that the SEPP 1 objection is well founded.

Resident objections

Traffic and safety
24. The parties appointed Mr Jason Rudd, a traffic engineer, as the joint expert on access and parking issues. In his assessment, the location of the driveway opposite Fairway Avenue satisfies the appropriate Australian Standard, as Fairway Avenue is a low-order local access road. With some modifications to the internal driveway Mr Rudd considers that the driveway will be a practical design for the proposed development.

25. Overall, and considering that the level of parking satisfies the requirements in SEPP 5, I accept that the proposal adequately addresses any traffic and safety issues.

Construction
26. Mrs Wood expressed concern over the potential impacts of construction vehicles in Fairway Avenue and the area in general. In response, the council imposed condition 98 requiring the submissions of a Traffic Control Plan to address traffic movements during the construction phase. I accept that this is an appropriate means to deal with this issue.

Orders
27. For the foregoing reasons, the Orders of the Court are:


1) The appeal is upheld.
2) Development Application No. 1032/03 for the demolition of an existing residence and erection of a housing development for older people or people with a disability at 55 Pentecost Avenue, Pymble, is approved subject to conditions in Annexure A.
3) The exhibits are returned with the exception of the Exhibits 2, O and Q.

_______________
G T Brown
Commissioner of the Court
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