Sale v Ku-ring-Gai Municipal Council

[2001] NSWLEC 291

Reported Decision: 119 LGERA 31

Land and Environment Court

of New South Wales

CITATION:	Sale v Ku-ring-Gai Municipal Council [2001] NSWLEC 291
PARTIES:	APPLICANT: Sale RESPONDENT: Ku-Ring-Gai Municipal Council
FILE NUMBER(S):	10505 of 2001
CORAM:	Bignold J
KEY ISSUES:	Development Application :- SEPP No 5 housing-impact of proposal on streetscape & character of environs and neighbouring residential amenity
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
CASES CITED:
DATES OF HEARING:	19, 20, 21 November 2001
DATE OF JUDGMENT:	12/21/2001
LEGAL REPRESENTATIVES:	APPLICANT: Mr J Hannaford, Solicitor SOLICITORS Cutler Hughes and Harris RESPONDENT: Mr P Rigg, Solicitor SOLICITORS Deacons

JUDGMENT:

IN THE LAND AND

Matter No. 10505 of 2001

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

21 December 2001

P SALE

Applicant

v

KU-RING-GAI MUNICIPAL COUNCIL

Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) against the refusal by the Council of a development application for housing for older people or people with a disability pursuant to the provisions of State Environmental Planning Policy No 5—Housing for Older People or People with a Disability (SEPP 5) on a development site comprising two adjoining lots known as 43 Canoon Rd and 1 Tarook Ave, South Turramurra, being lot 90 DP 16178 and lot 35 DP1791 respectively (the appeal site).

2. Although the Council’s Notice of Determination specified 14 grounds of refusal and the Council’s Amended Statement of Issues specified 24 issues, on the hearing of the appeal the issues in dispute were considerably reduced.

3. I have had the benefit of a comprehensive view of the appeal site, its environs and pedestrian route to the nearest bus stop, and of a number of adjoining residential properties, which view was undertaken in the company of the representatives of the parties and local residents who had raised objection to the proposal.

4. In the hearing of the appeal, I have had the assistance of Commissioner Brown pursuant to the Land and Environment Court Act 1979, s 37(1).

5. My consideration of the competing cases, as expressed in the evidence of the expert witnesses and of a number of the objecting local residents, has led me to conclude that development consent should not be granted, in the present case, principally because the development proposal presents as a built form that is disharmonious with the existing residential streetscape and character of the surrounding residential area and imposes an unacceptable burden on the amenity of the three adjoining residential properties by virtue of the bulk and overbearing appearance and capacity for overlooking, of the proposed development.
B. THE APPEAL SITE

6. The appeal site is located on the north-eastern corner of the intersection of Tarook Avenue and Canoon Road. The site comprises two lots with a combined area of 2,267 square metres. The site has frontages of 20.118 m to Tarook Avenue and 70.005 m to Canoon Road. The site is “L” shaped and falls in a northerly direction away from Canoon Road. Along the Canoon Road boundary, the site is relatively level.

7. Each of the two allotments is currently developed by a single storey brick dwelling house. Each of the existing dwellings is situated in a garden setting with generous setbacks and is generally typical of the style of houses in this section of the suburb of South Turramurra which was first opened up for residential development some 30 to 35 years ago. The existing dwellings blend well with the overall streetscape of both Tarook Avenue and Canoon Road, although the side boundary fence along the Canoon Road boundary of the corner allotment is discordant with the character of properties fronting that road.

8. The appeal site contains a number of trees within the building footprints of the proposed development that will have to be removed. Generally, the trees along the boundaries are proposed to be retained.
C. THE PROPOSED DEVELOPMENT

9. It is proposed that the existing houses on the appeal site be removed and the site be developed by 8 x 3-bedroom dwellings in two separate buildings (each containing four dwellings) as housing for older people and people with a disability under the provisions of SEPP No 5. It is also proposed that the resultant development be strata subdivided into eight lots. Parking is to be provided for 12 vehicles on the site with 8 in carports or garages and 4 vehicles stack parked in the driveways or setback areas, including one space in the driveway to the “adaptable” unit (Unit 1).

10. Access to Unit 1, is from Tarook Avenue, with the remaining two accesses to the proposed development being located in Canoon Road.

11. Each proposed dwelling offers similar accommodation but with some variations in floor plans to vary the design and accommodate various features. All 8 dwellings have two levels with the upper level being attic style bedrooms. Each dwelling has a courtyard and rear lawn space. Unit 1 is proposed as the “adaptable” unit aimed to comply with AS 4299 and AS 1428.

12. The buildings are set back 9.0 metres from Tarook Avenue and from 4.025 m to 11.0 m from Canoon Road.
D. RELEVANT PLANNING CONTROLS

13. The appeal site is included in the Residential C Zone designated by the Ku-ring-Gai Planning Scheme Ordinance which came into force on 1 October 1971 and since 1980, has continued in force as a deemed environmental planning instrument (the LEP).

14. Within that zone, “residential flat buildings” (defined as “a building or group of buildings containing two or more flats”) is an absolutely prohibited form of development. If the proposed development were to be categorised for the purpose of the LEP, it would be classified as a “residential flat building”, and hence be a prohibited form of development.

15. Despite the operation of the LEP, SEPP No 5 expressly sanctions the proposed development as “housing for older people or people with disabilities” by “setting aside local planning controls that would prevent” such development “that meets the development standards specified in this Policy”: vide cl 3(2). The express aims of SEPP No 5, as set out in cl 3(1) are as follows:

3(1) This Policy aims to encourage the provision of housing that will:

(a) increase the supply and diversity of housing that meet the needs of older people or people with a disability, and
(b) make efficient use of existing infrastructure and services, and
(c) be of good design.

16. Part 2 of SEPP No 5 which is headed “Development Criteria” includes development standards dealing with “wheelchair access” and “building height” (cl 13).

17. Additionally, it includes cl 14 which forbids a consent authority from refusing development consent to such permissible housing development on the grounds of “building height”; “density and scale”; “landscaped area”; and “parking” if certain specified standards in that behalf are satisfied.

18. Clause 9 expresses the following objective of Part 2:

The objective of this Part is to create opportunities for the development of housing that is located and designed in a manner particularly suited to both those older people who are independent, mobile and active as well as those who are frailer, and other people with a disability regardless of their age.

19. Part 3 of SEPP No 5 contains “Design requirements” and includes cl 24 and cl 25.

20. Clause 24 forbids the granting of consent unless the consent authority has taken into account the required “site analysis” (Schedule 2 detailing the various components of site analysis).

21. Clause 25 forbids the granting of consent unless the consent authority is satisfied “that the proposed development demonstrates that adequate regard has been given to the following principles” and the clause proceeds to detail principles pertaining to:
(a) neighbourhood amenity and streetscape
(b) visual and acoustic privacy;
(c) solar access and design for climate;
(d) stormwater;
(e) crime prevention
(f) accessibility; and
(g) waste management

22. Although SEPP No 5 prevails over any inconsistency with any other environmental planning instrument (vide cl 3(2)), the Council has adopted Development Control Code for Housing for Older People and Persons with a Disability (DCC 1/99). This document provides further provisions for housing for older people and people with a disability.
E. ADJUDICATION ON THE ISSUES IN DISPUTE

23. Of the 24 issues raised in the Amended Statement of Issues filed by the Council, a number were addressed to the satisfaction of the Council, by amended plans or by appropriately worded conditions. The remaining live issues can be conveniently grouped into the following three principal considerations—
(i) the design of the proposal— Issues 1, 2, 3
(ii) vehicular access to the development—Issues 8, 10, 13
(iii) disabled access—Issues 6, 14, 15

24. (Issue 24, which raises the matter of “public interest” and the objections to the proposal has been included in the discussion of the aforesaid three issues.)

25. I shall separately consider each of these matters.
(i.) Design of the Proposal

26. Clause 3(1)(c) of SEPP5 encourages housing that will “be of good design”. Clause 13 prescribes development standards for height and site frontage and it is common ground that the proposal satisfies these standards.

27. Clause 14 prescribes development standards for floor space ratio (cl 14(b)), landscaped area (cl 14(c)), parking (cl 14(d)), visitor parking (cl 14(e)). It is also common ground that the proposal satisfies these development standards.

28. Clause 25(a) prescribes further qualitative requirements for neighbourhood amenity and streetscape. The clause specifies that consent must not be granted unless the consent authority is satisfied that the development demonstrates that adequate regard, “where possible”, has been given to certain principles. For “neighbourhood amenity and streetscape”, these principles are:—
(i) contribute to an attractive residential environment with clear character and identity; and
(ii) where possible, 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
(iii) where possible, maintain reasonable neighbour amenity and appropriate residential character by providing building setbacks that progressively increase as wall heights increase to reduce bulk and overshadowing; and
(iv) where possible, maintain reasonable neighbour amenity and appropriate residential character by using building form and siting that relates to the site’s land form; and
(v) where possible, maintain reasonable neighbour amenity and appropriate residential character by adopting building heights at the street frontage that are compatible in scale with adjacent development; and
(vi) where possible, maintain reasonable neighbour amenity and appropriate residential character by considering, where buildings are located on the boundary the impact of the boundary walls on neighbours; and
(vii) 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; and
(viii) embody planting that is in sympathy with, but not necessarily the same as, other planting in the streetscape.

29. Clause 25(b) prescribes design principles for “visual and acoustic privacy” and these are:—
(i) appropriate site planning, the location and design of windows and balconies, the use of screening devices and landscaping; and
(ii) ensuring acceptable noise levels in internal living and sleeping areas of new dwellings by locating the living and sleeping areas away from driveways, parking areas and paths.

30. The impact on the amenity and the character of the neighbourhood was a principal focus of disagreement between the parties and attracted a considerable amount of expert and lay evidence.

31. For the Council, expert evidence was provided by Professor Peter Webber, an architect and town planner, and Mr Richard Smyth, a consultant town planner. Local residents Mr Kevin Rhodes of 40 Canoon Rd, Mr Han of 3 Tarook Avenue, Mrs Robyn Carmichael of 41 Canoon Road, Mr Ralph Capper of 48 Parkinson Avenue and Mr Greg Bloomfield of 16 Canoon Rd also gave oral evidence to the Court on this issue. The properties of Mr Han, Mrs Carmichael and Mr Capper each have common boundaries with the appeal site.

32. In terms of its general appearance, Professor Webber described the design as an “unacceptably prominent and unsympathetic building, and an unsatisfactory urban design outcome”. He based this opinion on the combination of the length of building, the predominantly two storey height and the proximity to the boundary towards the south-west end of the site.

33. Mr Smyth perceived a conflict between the proposal and the existing streetscape quality of the locality. He described the proposal as “a sad intrusion into the urban tranquillity of the locality”. Of particular concern was the use of the setback areas for large amounts of paving and carparking accommodation which he considered to be uncharacteristic of the area.

34. The opinions of Professor Webber and Mr Smyth were reinforced by similar opinions expressed by the residents who gave evidence. The conflict with the streetscape and the existing character of the area was also a dominant theme in public submissions received by the Council in response to the public advertising of the proposal.

35. Evidence for the Applicant was provided by Mr Chris Blyth, a consultant town planner. He took a different view from the Council’s witnesses and perceived no problem with the design of the proposed development. In his opinion, the architectural style (which incorporates devices such as varied elevations, face brick and rendered surface, steep pitched roof forms and dormer windows) created a “pleasing presentation and streetscape appeal”. The setbacks were appropriate according to Mr Blyth, considering the site’s corner location and the retention of existing street trees and the provision of further plantings in this location.

36. In relation to amenity impacts, three residential properties adjoin the boundaries of the appeal site and the owners of these properties each raised specific objections to the proposal. All three properties were inspected and estimates made of the location and form of the proposal and how the proposal would relate to, and impact upon, these adjoining properties.

37. Mrs Carmichael’s property is located to the east of the eastern building that will house dwellings 5 to 8 inclusive. Her concerns related to the potential for overlooking from the balconies of the units, and the noise associated with the use of this area by future residents. She identified a further source of overlooking as the first floor bedroom windows. She considered that the impact of any overlooking would result in a loss of privacy to her rear deck and also to her backyard area. She was also concerned of the length and height of the proposal extending virtually the entire length of the common boundary.

38. Mr Capper lives at the rear and shares approximately half of his rear boundary with the appeal site. His concerns related to the potential for overlooking from the patio and the living/dining area of unit 5 as well as the proximity to his boundary. The rear of his property which contains a swimming pool and surrounds, provide the only useable open space for his property which slopes steeply to the street frontage many metres below.

39. Mr Han adjoins the appeal site for the full length on his southern boundary and for approximately half of his rear (or eastern) boundary. His concerns related to the potential loss of privacy through overlooking into his pool area as well as a number of rooms within his dwelling.

40. On the more general issue of streetscape and character, I am persuaded by the evidence of Professor Webber and Mr Smyth rather than by the competing evidence of Mr Blyth. With the benefit of my view of the area (and particularly the residential developments fronting Canoon Road and Tarook Avenue) the character could aptly be described as being predominantly single dwellings of one and two storey construction set well back from the street frontage and with well landscaped setbacks. Where the dwellings are two storeys, they appear generally to be more recent alterations to the original single storey form of housing.

41. In this context, I find that the proposal does not contribute to an attractive residential environment (cl 25(a)(i)) and does not provide a setback that is in sympathy with the existing building line (cl 25(a)(vii)). Additionally, the large amount of hard paving, particularly to the Canoon Road frontage, militates against the provision of planting that may contribute to the streetscape appearance (cl 25(a) (viii)).

42. In coming to these conclusions, I appreciate that the Applicant has attempted to provide an attractive design through the architectural features as described by Mr Blyth, but in my opinion, these features do not overcome the sheer bulk of the proposal that manifests itself by two separate building, each grouping four individual dwellings. The perception of the proposal from Canoon Road (and from Mr Hans and Mrs Carmichaels’ properties) is clearly unacceptable. The minimal setbacks, particularly at the western end of Canoon Road and the lack of available area for planting exacerbate the proposal’s poor presentation to the street.

43. In terms of the impact on the adjoining residential properties, I also find the proposal to be unacceptable. When viewed from Mrs Carmichael’s property, the building will run virtually the full length of her western boundary, when viewed from her rear verandah and backyard. The building setback to the boundary is in the order of 4 m, however, the rear patio for the units comes within 1 m of the boundary. While the Applicant sought to address the overlooking issue by providing some screens to the patios in some locations, and by relying on the 1.8 m high boundary fence in other places, these mitigative measures create their own problems.

44. For units 5 and 6, the screening provided on the patio is required as it is possible to view over the 1.8 m high boundary fence. This is a direct result of the design which raises the ground floor and patio levels up to 1.7 m above natural ground level. Apart from the overlooking issues, the height above natural ground level adds to the bulk and overbearing appearance of the building from Mrs Carmichael’s property. Additionally, the design provides for the filling and retaining of the courtyards for units 6, 7 and 8. With a maximum of 1.2 m of fill and a 1.8 m dividing fence located on this fill, a structure that reaches 3 m in height (if only in three places) is inconsistent with what would be reasonably expected of adjoining development in a residential environment.

45. The impacts on Mr Capper’s property are also the result of the excessively high building, in that direct viewing will be available into his pool area and recreation area behind his house, from the patio and living/dining area of unit 5. In this case, the height of the patio is some 2 m above the height of the land at the boundary which is only 3.36 m distant. Any suggestion that landscaping could overcome this overlooking problem is rejected as I do not think that landscaping can redeem what is a significant flaw in the design of the proposal.

46. Mr Hans’ property would also suffer from overlooking from the proposal even though the proposal is generally set back further than the set backs from Mrs Carmichael’s and Mr Capper’s properties. A similar bulky effect to that experienced by Mrs Carmichael is presented to Mr Han by the grouping into one block of dwellings 1 to 4. He also has the added burden of having the rear units of the eastern block being clearly visible from his swimming pool area, albeit screened by some existing vegetation.

47. Pursuant to cl 25(b), I find that that proposal has given insufficient attention to proper “site planning” and “the location of and design of windows and balconies” in order to protect visual and acoustic privacy of neighbours. The proposed use of “screening devices and landscaping” seeking to ameliorate adverse amenity impacts does not disguise or change the fact that the proposal is beset by serious design flaws.

48. Although not raised as an issue by the Council, I would specifically note cl 24 of SEPP 5 which requires that a site analysis be prepared. Clause 24(1) states that consent must not be granted unless the consent authority has taken into account the site analysis. Clause 24(2) provides specific requirements for the site analysis.

49. The document provided by the Applicant could, at best, be described as a minimalist attempt to satisfy cl 24 to such a degree that I have grave doubt as to how it properly could fulfil its statutory purpose (vide cl 24(2)(b)). Site analysis is defined in Schedule 2 to SEPP5 to mean:

The process of identification and analysis of key features of the site and immediate surroundings to assist in understanding how future dwellings will relate to each other and to their locality.

50. The components of a site analysis are detailed in Schedule 2 to SEPP 5.

51. It would seem clear that the purpose of the deliberate inclusion in SEPP No 5 of the requirements for a site analysis was to identify those features (physical and environmental) which should legitimately influence the design of a SEPP 5 development, both internally and externally.

52. The site analysis provided in support of the present application clearly could not adequately achieve this purpose as it essentially consisted of a survey plan and the most basic of meteorological information. It does not show the proposed buildings or identify the major concerns of external overlooking and loss of privacy for neighbouring developments. Important features such as Mr Hans’ pool area and Mr Capper’s pool area are simply not shown or identified

53. While the proper identification of key features and constraints is no guarantee for an acceptable design result, it is an obvious beneficial prelude to a planned good design. The design flaws in the proposal, in my view, clearly emanate from the lack of respect for and attention to, key external features constraining development of the appeal site, which in turn probably bespeaks an inadequate site analysis.
(ii.) Vehicular access

54. Mr Smyth expressed concern at the need for the vehicles associated with units 1, 2 and 3 to reverse into the street, particularly as the driveway for dwellings 2 and 3 is situated almost opposite Chisholm Street which intersects with Canoon Road. He also saw problems with the reversing movements out of garages 6 and 7 as well as the likely bottoming of vehicles because of the change in grades of the pavement adjacent to these garages. The difficulty in accessing properties was also raised by the local residents who told of the extensive on-street parking and traffic generation that occur during the use of the netball courts situate at the end of Canoon Road. That use occurs all day on Saturdays during the netball season of 18 weeks from April to September.

55. Mr Blyth stated that the reversing movements from a residential site is a common situation in residential areas and will not result in any unsatisfactory or unsafe traffic situation. In reply to Mr Smyth’s concerns over the reversing movements from garages 6 and 7, he agreed that this could be overcome by simply extending the area needed to reverse the vehicles. He also disputed Mr Smyth’s assessment of the levels outside these garages and his conclusion that vehicles would bottom over the change in grades.

56. On this particular issue, I find the proposal to be barely acceptable, and while I accept that a reversing movement into a public street should be avoided if possible, it is not a matter that by itself would warrant the refusal of the application for that particular reason. In so concluding, I note that cl 25(f)(ii) of SEPP No 5 requires the development to provide “safe environments for pedestrian and motorists with convenient access and parking for residents and visitors”. The fact that stacked carparking for three of the dwellings necessitates a reversing manoeuvre onto the road must be considered a demerit in the design of housing under SEPP No 5. When combined with a number of other concerns raised by the Council, this aspect of the overall design suggests a development that exceeds the capacity of the site.

57. The adjustments to allow the proper reversing of cars out of garages 6 and 7 can be adequately addressed through adjustments to the adjoining landscaped area. The evidence dealing with the grades and the possible bottoming of vehicles remained in dispute however, based on my previous finding, it is not a matter that needs to be determined.
(iii.) Disabled Access

58. The Council’s concerns over disabled access focussed on (i) the access to the courtyards to each of the dwellings, (ii) the suitability of stacked parking for unit 1, (iii) the two storey construction of each the dwellings and (iv) external access to the most proximate bus stop.

59. Evidence for the Council was given by Mr Mark Relf, a disability access consultant and for the Applicant by Mr Warwick Gregg an architect specialising in disability access.

60. It was Mr Relf’s concern that access was not available to parts of some of the courtyards for wheelchairs because of the change in levels and the use of stairs to move from one level to another. Mr Relf considers that this arrangement would not comply with cl 25(f)(iii) of SEPP 5.

61. Mr Gregg disagreed with Mr Relf and saw no conflict with cl 25(f)(iii) as sufficient open space is available within the dwellings on the same level as the ground floor. Furthermore, he contended that additional areas of open space are available throughout the site which are wheelchair accessible.

62. Clause 25(f)(iii) states:—
(f) Accessibility: The proposed development should, where appropriate:
(iii) where feasible, involve site layout and design that enables people with a disability to access, on one continuous accessible path of travel, the street frontage, car parking, and all buildings, facilities and open spaces within the site.

63. On this matter, whereas I generally accept Mr Gregg’s evidence and conclude that the requirements of cl 25(f)(iii) are satisfied, the fact that access to private open spaces generally requires the negotiation of steps to fully enjoy those facilities is a telltale sign that the overall design of the proposed development is unsatisfactory for eligible residents.

64. Mr Relf’s concern over the stacked parking layout for unit 1, being the adaptable unit, was that access may not be available to a disabled person’s vehicle if an additional vehicle is parked behind this vehicle. He sees a conflict with cl 25(f)(ii). Mr Gregg acknowledges that some conflict may occur, however he considers the parking arrangements to be acceptable.

65. Clause 25(f)(ii) states:—
(f) Accessibility: The proposed development should, where appropriate:
(ii) provide attractive, yet safe, environments for pedestrians, cyclists and motorists with convenient access and parking for resident and visitors; and

66. On this matter, I accept that the proposal’s parking provision is not optimal, however it is not of such significance that it would warrant by itself the refusal of the application.

67. The two storey configuration of the proposal was seen by Mr Relf as a “negative feature”. While it was possible that a stair lift could be adapted to the stairs of the adaptable unit the width of the stairwell was likely to create some difficulties. Mr Gregg, on the other hand, saw no problem with a two storey development where sufficient space and facilities were available on the ground floor level for people who had difficulties with stairs.

68. As SEPP5 provides no absolute bar to two storey buildings and has as one of its objectives a need to provide housing for a range of eligible residents, I do not think that that feature of the proposal is fatal, subject, of course to the development fulfilling the other requirements of SEPP 5.

69. There was some disagreement between Mr Relf and Mr Gregg on the need to upgrade the footpath, gutter and road pavement to promote for safe access to the nearby bus stop, some 100 metres along Canoon Road from the appeal site. Following consideration of their evidence, the only matter still in issue is whether a pedestrian refuge or some other treatment to the road pavement is required. There was also some discussion on the frequency of wheelchair accessible buses, although the overall frequency of buses was not in question.

70. Mr Gregg provided details from Shorelink, the local bus service, on the frequency of wheelchair accessible buses. His evidence indicated that the frequency is very limited, although a greater frequency is likely to occur in 2002 with the purchase by Shorelink of more wheelchair accessible buses. I note SEPP 5 refers generally to “transport services” and does not distinguish between wheelchair accessible buses and normal buses. Obviously, the provision of wheelchair accessible buses would be beneficial to a development of this nature, however their absence or limited availability and frequency should not be fatal to the application.
F. CONCLUSIONS AND ORDERS

71. For all the foregoing reasons, I have concluded that development consent should not be granted because of my finding that the proposed development is unacceptable in terms of its adverse impacts on the streetscape and character of the residential locality and on the residential amenity of the three residences which have a common boundary with the appeal site. Accordingly, I make the following orders:

1. Appeal dismissed.

2. Development consent refused

3. Exhibits be returned.

4. No orders as to costs.