Saha Builders Pty Ltd v Ku-ring-gai Council

[2019] NSWLEC 1497

Land and Environment Court

New South Wales

Medium Neutral Citation:	Saha Builders Pty Ltd v Ku-ring-gai Council [2019] NSWLEC 1497
Hearing dates:	14-15 October 2019
Date of orders:	22 October 2019
Decision date:	22 October 2019
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The Court orders: (1)   The appeal is dismissed. (2)   Development Application No. 0208/18 for the demolition of existing structures and construction of a multi dwelling seniors’ housing development consisting of 7 two-storey attached dwellings with basement car parking and associated works is refused. (3)   The Exhibits, other than Exhibits 1, A, B, D and K, are returned.
Catchwords:	DEVELOPMENT APPLICATION – seniors housing development – calculation of the rear 25% setback on an irregularly shaped parcel of land – whether the built form of the proposal maintains reasonable neighbourhood amenity and appropriate residential character
Legislation Cited:	Environmental Planning and Assessment Act 1979 Interpretation Act 1987 Ku-ring-gai Local Environmental Plan 2015 Land and Environment Court Act 1979 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004
Cases Cited:	Nanevski Pty Limited v Rockdale City Council [2010] NSWLEC 1008
Texts Cited:	Ku-ring-gai Development Control Plan Practice Note – Class 1 Development Appeals
Category:	Principal judgment
Parties:	Saha Builders Pty Ltd (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel: J Farrell (Applicant) R O’Gorman-Hughes (Respondent)   Solicitors: McKees Legal Solutions (Applicant) Shaw Reynolds Lawyers (Respondent)
File Number(s):	2018/229712
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. 0208/18 for the demolition of existing structures and construction of a multi-dwelling seniors housing development consisting of 7 two-storey attached townhouse dwellings with basement car parking and associated works (the proposal) at 8 Wirra Close, St Ives (the site) by Ku-ring-gai Council (the Council).

2. The development application is made pursuant to the provisions of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP Seniors).

3. The appeal was subject to conciliation on 1 March 2019, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act.

4. Leave was granted by the Court on 2 July 2019 for the applicant to amend the application to rely on amended architectural drawings. Leave was unopposed and granted by the Court at the commencement of the hearing for the applicant to amend the application to rely on an amended first floor plan (Ex D) and revised shadow diagrams (Ex E). The parties agreed that the amendments in Ex D are minor within the meaning of s 8.15(3) of the EPA Act.

Issues

5. The Council’s contentions can be summarised as:

• The proposal is not permissible as it is not in accordance with the provisions of SEPP Seniors because it does not comply with the development standard at cl 40(4)(c) for one storey in the rear 25% of the site.

• The proposal is excessive in built form, density and scale, having regard to the site and its context and because the proposal exceeds the floor space ratio (FSR) of 0.5:1 at cl 50(b) of SEPP Seniors. The expansive building width of up to 50m presents an excessive building façade which dominates the presentation of the site to the front area rear elevations, adversely impacting the streetscape and visual amenity of neighbouring properties.

• The proposed building setbacks are inadequate having regard to visual impacts, privacy and amenity of neighbouring properties.

• The proposal does not provide adequate internal site amenity with respect to landscape and open spaces.

• The proposal does not satisfy the requirements of SEPP Seniors policy aim for housing to be of good design and the design principles of Pt 3 Div 2.

• The proposal fails to satisfy SEPP Seniors cl 33(a) and (c) as it is inconsistent with the existing and desired future character of the surrounding locality. The proposal adversely impacts neighbourhood amenity and streetscape character.

6. The Council submitted that the contentions regarding non-compliance with the maximum building height development standard of 8m (cl 40(4)(a) of SEPP Seniors) and the location and access to facilities (cl 26 of SEPP Seniors) are not pressed following the amendment of the proposal and the provision of further information.

7. The Council was granted leave to amend the Statement of Facts and Contentions (Ex 1) to add a contention that the proposal does not comply with the development standard in SEPP Seniors at cl 40(4)(c) that a building located in the rear 25% area of the site must not exceed 1 storey in height. The grant of leave to amend the contentions was opposed by the applicant. Leave was granted for the Council to amend the contentions for the following reasons:

• The contention raised a jurisdictional matter;

• The contention was raised by a number of objectors; and

• The proposal has been amended a number of times by the applicant and although the applicant submitted that no changes have been made to the eastern elevation, it was appropriate to hear from the planning and urban design experts regarding their opinion as to whether the amended proposal complies with cl 40(4)(c) of SEPP Seniors.

8. The parties were directed to address the new contention during the oral evidence of the planning and urban design experts in order to efficiently identify the real issues in dispute.

The site and its context

9. The site has an area of 1836.6sqm. The irregularly shaped site has six sides, with a short arc to the dead-end of the cul-de-sac of 11.69m and side boundaries that splay out to a rear boundary of 65.53m, with a “toe” 20.59m wide at the southern end. The long boundary is the eastern boundary of the site.

10. The properties adjoining the site on Wirra Close contain dwellings that roughly fan out around the dead-end of the cul-de-sac. The properties to the rear of the site front the cul-de-sac of Torokina Avenue and share a rear boundary with the site. The site falls to the south and east.

The proposal

11. The proposal is to demolish the existing dwelling and construct seven attached dwellings over a common basement. The attached terrace row is orientated parallel to the long, eastern boundary and step back at either end away from the street boundary, to accommodate the driveway fall at the northern end and the configuration of the site at the southern end.

12. The dwellings are in the form of attached townhouses, with entries to each unit on the western side of the development via an external pathway that wraps around the western façade and private open space on the ground floor of the eastern side of the proposal. Each unit has three bedrooms over two levels. The basement is accessed via a driveway from Wirra Close and there is lift access from the basement to external lift lobbies on the ground level.

13. The proposal includes 14 car parking spaces and two visitor car parking spaces.

Planning framework

14. The site is zoned R2 Low Density Residential pursuant to Ku-ring-gai Local Environmental Plan 2015 (LEP 2015). The objectives of the R2 zone are:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To provide for housing that is compatible with the existing environmental and built character of Ku-ring-gai.

15. Multi-dwelling residential development is not a permitted use in the R2 zone and the proposal relies on SEPP Seniors for permissibility. SEPP Seniors applies to the site at cl 4(1)(a)(i), as the site is zoned primarily for urban purposes and development for the purpose of dwelling-houses is permitted in the R2 zone. SEPP Seniors prevails over any other environmental planning instrument to the extent of an inconsistency, at cl 5(3).

16. The aims of SEPP Seniors are:

(1) This Policy aims to encourage the provision of housing (including residential care facilities) that will—

(a) increase the supply and diversity of residences that meet the needs of seniors or people with a disability, and

(b) make efficient use of existing infrastructure and services, and

(c) be of good design.

17. The proposal is for in-fill self-care housing within the meaning of self-contained dwellings at cl 13(2) of SEPP Seniors.

18. The relevant definitions in SEPP Seniors at cl 3 are as follows:

gross floor area means the sum of the areas of each floor of a building, where the area of each floor is taken to be the area within the outer face of the external enclosing walls (as measured at a height of 1,400 millimetres above each floor level)—

(a) excluding columns, fin walls, sun control devices and any elements, projections or works outside the general lines of the outer face of the external wall, and

(b) excluding cooling towers, machinery and plant rooms, ancillary storage space and vertical air conditioning ducts, and

(c) excluding car parking needed to meet any requirements of this Policy or the council of the local government area concerned and any internal access to such parking, and

(d) including in the case of in-fill self-care housing any car parking (other than for visitors) in excess of 1 per dwelling that is provided at ground level, and

(e) excluding space for the loading and unloading of goods

streetscape means the character of a locality (whether it is a street or precinct) defined by the spatial arrangement and visual appearance of built and landscape features when viewed from the street.

19. In calculating the number of storeys in a development for the purpose of the policy, a car park that does not extend above ground level by more than 1m is not be counted as a storey, at cl 3(2) of SEPP Seniors.

20. Adequate regard is to be given to the design principles set out in Pt 3 Design Requirements, Div 2 of SEPP Seniors, including that the development should, at cl 33:

(a) recognise the desirable elements of the location’s current character … so that new buildings contribute to the quality and identity of the area, and

(b) retain, complement and sensitively harmonise with any heritage conservation areas in the vicinity and any relevant heritage items that are identified in a local environmental plan, and

(c) maintain reasonable neighbourhood amenity and appropriate residential character by—

(i) providing building setbacks to reduce bulk and overshadowing, and

(ii) using building form and siting that relates to the site’s land form, and

(iii) adopting building heights at the street frontage that are compatible in scale with adjacent development, and

(iv) considering, where buildings are located on the boundary, the impact of the boundary walls on neighbours, and

(d) be designed so that the front building of the development is set back in sympathy with, but not necessarily the same as, the existing building line

21. The proposed development should consider the visual and acoustic privacy of neighbours in the vicinity, at cl 34 of SEPP Seniors.

22. The proposed development should ensure adequate daylight to the main living areas of neighbours in the vicinity and residents and adequate sunlight to substantial areas of private open space, at cl 35.

23. Part 4 of SEPP Seniors includes development standards for minimum sizes and building height, including at cl 40(4)(c) that a building located in the rear 25% area of the site must not exceed 1 storey in height.

24. Part 7 Development standards that cannot be used as grounds to refuse consent, Div 4 of SEPP Seniors includes, at cl 50(b) density and scale, “if the density and scale of the buildings when expressed as a floor space ratio is 0.5:1 or less”, a consent authority must not refuse consent to a development application made pursuant to Ch 3 Development for seniors housing. The parties disagreed on whether a written request pursuant to cl 4.6 of LEP 2015 is required to vary a standard under cl 50 of SEPP Seniors.

25. Clause 50 of SEPP Seniors includes, at (h)(i), 0.5 car spaces for each bedroom where the development application is made by a person other than a social housing provider. There are 21 bedrooms in the proposal which the planning experts agreed results in 11 car parking spaces required as a minimum to meet the “cannot be used to refuse development consent” threshold in cl 50 of SEPP Seniors.

26. Ku-ring-gai Development Control Plan (KDCP) includes, at Part 22R.1, in a car parking rates table, that the provisions of SEPP Seniors apply and a recommendation for seniors housing of 2 spaces per 3 self-contained units plus 1 visitor space for every 5 units.

27. KDCP has objectives and controls for setbacks for multi-dwelling housing at section 6A.3. Side setbacks are to be a minimum of 3m and the rear setback is to be a minimum of 6m. The applicant submitted that multi-dwelling housing is not permitted in the R2 zone and therefore the objectives and controls of KDCP should be considered in this context.

Public submissions

28. Seven resident objectors provided evidence at the commencement of the hearing onsite. Their concerns can be summarised as:

• The proposal will have an adverse impact on the visual and acoustic privacy enjoyed in the backyards of adjoining properties;

• The proposal is inappropriate for a site at the end of a cul-de-sac and near schools;

• The proposed excavation is excessive and will have a detrimental impact on adjoining properties;

• The proposed stormwater disposal is unacceptable and will result in overflow onto adjoining properties;

• The proposal does not comply with the development standard in SEPP Seniors to have a maximum of one storey in the rear 25% of the site;

• The proposal exceeds the FSR development standard in SEPP Seniors; and

• The proposal has not addressed the accessibility requirements at the other end of the bus journey at St Ives Shopping Centre.

Expert evidence

29. The applicant relied on the expert evidence of Mr Greg Boston (planning), Mr Paul Scrivener (landscape) and Mr Bruce Kenny (engineering). The Council relied on the expert evidence of Mr Joshua Daniel (planning), Mr Kieran McInerney (urban design), Mr Geoff Bird (landscape) and Mr Brian O’Connell (engineering).

30. The landscape and engineering experts were not required to give oral evidence following their agreement on amendments in relation to contentions raised in their joint reports.

Consideration

The proposal complies with the requirement for single storey development in the rear 25% of the site

31. The planning and urban design experts disagreed on the calculation of the “rear 25% area of the site” under cl 40(4)(c) of SEPP Seniors.

32. According to Mr Boston, the rear 25% area of the site is determined for this irregularly shaped site by taking a quarter of the site area of the site and determining the linear rear setback for that area, which is 7.1m. This is, according to Mr Boston, consistent with Commissioner Brown’s finding for defining the rear 25% area of the site in a similar circumstance where the site was irregular and the parties disagreed on how to determine the rear 25% area of the site for the purpose of cl 40(4)(c) of SEPP Seniors (Nanevski Pty Limited v Rockdale City Council [2010] NSWLEC 1008 [64]). Mr Boston preferred this method as it results in an area which represents a quarter of the site area.

33. According to Mr Daniel, the rear 25% area of the site is determined for this irregularly shaped site by determining the point of the quarter of the length at the eastern end of the side boundaries and radiating lines from the street front to the rear boundary and joining the points so as to find a line that delineates an area of the site to the east as the rear 25% area (Ex 7). The area delineated using this method is greater than a quarter of the site area being 471sqm.

34. I prefer Mr Boston’s reasoning and I concur with Commissioner Brown’s findings in Nanevski Pty Limited v Rockdale City Council [2010] NSWLEC 1008 at [64], as follows:

“64 Clause 40(4)(c) provides little guidance in terms of defining the rear 25% of the site when the site is not rectangular. In considering the two different approaches of Mr Adamson and Mr Burrell, I agree that the method of Mr Burrell should be used. Importantly, the clause makes specific reference to an "area of 25% of the site". Mr Adamson's method results in an area greater than 25% of the site area and, in my view, must be seen as inconsistent with the requirements of the clause. In the absence of any greater guidance from the Policy, the approach of Mr Burrell would seem to be a fair and practical approach to delineating the area required by cl 40(4)(c).”

35. I accept the Council’s submission that Mr Boston’s method of determining the rear 25% area of a site may result in varying “rear building lines” on adjoining properties with irregular configurations. This is appropriate as an irregularly shaped parcel does present a particular and unique constraint for the positioning and spatial layout of any built form and the layout of the site has to be an appropriate response to the both the planning regime and the constraints and opportunities of that particular parcel of land, which may be different to the constraints and opportunities of an adjoining parcel of land in certain circumstances.

Gross floor area and floor space ratio calculation

36. The planning and urban design experts disagreed on the calculation of the gross floor area (GFA) of the proposal.

37. In Mr Daniel’s view, the areas of the basement and ground level that do contribute to GFA under the definition in SEPP Seniors are the garbage room; the 2 visitor parking spaces; the excess area in the basement behind the parking spaces containing bicycle racks; and the two enclosed lift lobbies on the ground floor.

38. In Mr Boston’s view, the garbage room and storage space in the basement are caught by the exclusion of, “(b) plant rooms, ancillary storage space” in the definition of GFA in SEPP Seniors and the lift lobbies are caught by the exclusion of “(c) any internal access to such parking”. I prefer Mr Boston’s interpretation of the exclusions to GFA under the definition in SEPP Seniors and I am satisfied that the garbage room and ancillary storage space in the basement and the lift lobbies are excluded from the calculation of GFA and therefore do not contribute to the ratio calculation for FSR. I note that lift lobbies may not consistently fall within this exclusion. In this proposal, the lift lobbies on the ground floor open to external pathways and the lobbies only provide pedestrian vertical access to the basement parking and not to upper levels or other areas of the proposal.

39. KDCP includes, at Part 22R.1, a car parking rate table which includes a recommendation for seniors housing of 1 visitor car parking space per 5 units. This formula results in 2 visitor car parking spaces recommended for this proposal. This recommendation in KDCP is sufficient to be caught by the exclusion to GFA in the definition at (c), “car parking needed to meet any requirements of… the council of the local government area concerned” because “any requirements” is sufficiently broad to include a recommendation for a parking rate in KDCP. The 2 visitor car parking spaces are excluded from contributing to the calculation of GFA.

40. Clause 50 of SEPP Seniors includes, at (h)(i), 0.5 car spaces for each bedroom where the development application is made by a person other than a social housing provider. There are 21 bedrooms in the proposal which the planning experts agreed results in 11 car parking spaces required as a minimum to meet the “cannot be used to refuse development consent” threshold.

36. Mr Boston agreed with Mr Daniel that the three additional parking spaces contribute to the GFA under the definition in SEPP Seniors, although Mr Boston noted that parking is constrained in Wirra Place due to the configuration of the cul-de-sac and driveway entries and some extra parking spaces onsite is desirable. Mr Boston also noted that three parking spaces could be deleted from the proposal to achieve the 0.5:1 FSR.

37. There is, in my view, some difficulty in applying the minimum “cannot be used to refuse development consent” formula for car parking spaces as a maximum “requirement” under the areas excluded from GFA in the definition, where the Policy is ambiguous as to what the “requirement” actually is. Firstly, the “cannot be used to refuse development consent” formula is merely a minimum threshold, which if met, prevents a refusal on the basis of an insufficient car parking provision. Secondly, there is no discouragement in the Policy to provide additional spaces beyond the formula and this is evidenced by the phrase “if at least the following is provided” [italics added] at cl 50(h). I am of the view that if the additional three car parking spaces provided for residents does contribute to GFA and if there is no contention raised regarding any detrimental impacts arising from the volume of the basement, those car parking spaces are acceptable and any increase in the FSR above the 0.5:1 threshold solely on the basis of the area of the three car parking spaces contributing to GFA would not be a reason to refuse the application.

Exceeding the standards under cl 50 of SEPP Seniors is not subject to the terms of cl 4.6 of LEP 2015

43. As the density and scale standard at cl 50(b) of SEPP Seniors is a standard that, if met, cannot be used to refuse development consent, it is not subject to the terms of cl 4.6(2) of LEP 2015 because the exceedance of the standard does not constitute the contravention of a development standard. By exceeding the FSR standard of 0.5:1 at cl 50(b) of SEPP Seniors, the applicant merely risks the respondent raising a contention in relation to the GFA proposed and a determination based on FSR. The standards under cl 50 are not provisions under which requirements are fixed as an upper limit in respect of any aspect of the development, but are requirements that merely fix a threshold for an aspect of the development below which consent cannot be refused. This is further demonstrated by the explanation in the note to cl 50, “The provisions of this clause do not impose any limitations on the grounds on which a consent authority may grant development consent”, although the note does not form part of the instrument (s 35(2)(c) of the Interpretation Act 1987).

44. I accept the applicant’s submission that a written request to vary a development standard under cl 4.6 of LEP 2015 is not required for a FSR above the standard in cl 50(b) of SEPP Seniors.

Neighbourhood amenity and character

45. The fundamental issue with this proposal is that it is a building typology forced onto an awkwardly shaped site and as a consequence the building form sits uncomfortably on the site and creates very tight “pinch points” in Mr Daniel’s words. This proposal is not, as submitted, a building in the centre of the site surrounded by landscaped grounds, but it is instead a terrace row squeezed onto an irregular site, which the experts described as being shaped like a boot. This site is not suitable for the arrangement proposed. All of the contentions raised by the Council regarding amenity and character flow from this fundamental flaw.

46. The spatial layout of the site ignores the north orientation as all the units are orientated west to east. The orientation and spatial layout also ignores the relationship of built form to Wirra Close. Currently the dwellings in Wirra Close fan around the dead-end of the cul-de-sac and the existing dwelling on the site achieves this by primarily orientating to the side, south-western boundary shared with 9 Wirra Close.

47. I accept and agree with Mr McInerney’s criticism of the proposal as an “extruded” form. The building mass is not broken up and this does not achieve a superior outcome for this site; instead, it fails to reduce the apparent bulk and visual impact of the building and it fails to adequately respond to the existing neighbourhood’s context and character. The single orientation of the built form and alignment with the rear boundary has imposed a rigid constraint on the proposed development which would result in an unrelieved wall of attached dwellings along the rear boundary, which significantly overshadow the private open space of the properties to the east of the site on the afternoon of the winter solstice.

48. The projection of the party walls between each townhouse expresses the small scale and narrow width of the individual small dwellings, contrary to the character established in the cul-de-sac by large, expansive dwellings. By breaking the form into two rows or manor houses, with different orientations, the proposal might have taken better advantage of the northern aspect and it would have offered some relief along the rear boundary with landscaping between the built forms and an opportunity to relieve the overshadowing of adjoining properties. Although the proposal complies with the requirement for single storey development in the rear 25% of the site, the irregular triangular configuration of the site means that the rear setback for the upper level is only 7.1m and the upper level of the proposal is positioned on this alignment with little relief in the built form.

49. The “pinch point” of approximately 0.5m separation of the parapet adjacent to unit 5 at a height of 4.8m above existing ground level and the splayed shared boundary between the site and 9 Wirra Close is significantly compromised and unnecessary. The parapet wall over the walkway unnecessarily adds to the bulk of the proposal. This pinch point illustrates the uncomfortable juxtaposition of the terrace row on this irregular site.

50. The walkway on the western side of the proposal is the only pedestrian access to the units and common open space and it is positioned directly adjacent to the western façade without any separation between the ground floor front doors and bedroom windows on the western elevation of units 2, 5, 6 and 7. The pathway provides a resident or visitor with a direct view into ground floor bedrooms through the windows and each front door opens directly onto the footpath, without the respite of an alcove or any feature to give some sense of separation and create a semi-private transition between the access path and the front door. The position of the pathway on the western side of the proposal significantly erodes the privacy and amenity of units 2, 5, 6 and 7. I am satisfied that the Council’s contention that the proposal does not provide adequate internal site amenity is made out.

51. The entries to units 6 and 7 are compromised as these two units are tucked behind the front façade and located in the southern “toe” of the site. The setback between the shared side boundary of 9 Wirra Close and units 6 and 7 is minimal and will result in unnecessary amenity impacts on the neighbouring property. The balconies of units 5, 6 and 7 provide little amenity to those units and directly overlook the private open space of 9 Wirra Close. I am satisfied that the Council’s contention that the proposed building setbacks are inadequate having regard to visual impacts, privacy and amenity of neighbouring properties, is made out.

52. The building envelope and expansive front façade leaves a left over space in the front setback, rather than creating a forecourt and a relationship to the cul-de-sac. This is a function of the orientation of the row to the rear boundary, rather than designing the spatial layout as a response to the streetscape on the western side. The pop-up of a lift in the front setback with lobbies on either side is uncharacteristic in a low density residential environment. I am satisfied that the Council’s contention that the presentation of the proposal to the street adversely impacting the streetscape and visual amenity of neighbouring properties is made out.

Conclusion

53. Although it is not determinative, the architectural plans are not consistent with the Court’s requirements for plans in Schedule A of the Practice Note for Class 1 Development Appeals. There are inconsistencies between the plans and critical dimensions and levels are not indicated. The plans, at A3, are not to scale and the site survey lacks important information such as contour lines or levels beyond the site boundaries and the footprint of adjoining development.

54. I am not satisfied that the proposal is consistent with the aims of SEPP Seniors for housing to be of good design, or the design principles at cll 33 and 34.

Orders

55. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No. 0208/18 for the demolition of existing structures and construction of a multi dwelling seniors’ housing development consisting of 7 two-storey attached dwellings with basement car parking and associated works is refused.

3. The Exhibits, other than Exhibits 1, A, B, D and K, are returned.

____________

Susan O’Neill

Commissioner of the Court

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Decision last updated: 22 October 2019