Sarich v Ku-ring-gai Council

[2005] NSWLEC 254

Land and Environment Court

of New South Wales

CITATION:

Sarich v Ku-ring-gai Council [2005] NSWLEC 254

PARTIES:

APPLICANT
Eugene Sarich

RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):

10176 of 2005

CORAM:

Hoffman C

KEY ISSUES:

Development Consent :- Building height - streetscape - size - bulk

LEGISLATION CITED:

Ku-ring-gai Planning Scheme Ordinance 1971
Development Control Plan No. 38

DATES OF HEARING:

13/05/2005

EX TEMPORE JUDGMENT DATE:

05/13/2005

LEGAL REPRESENTATIVES:

APPLICANT - self represented

RESPONDENT
Ms C Rose, solicitor
SOLICITORS
Wilshire Webb

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman J

13 May 2005

10176 of 2005 Eugene Sarich v Ku-ring-gai Council

JUDGMENT

1 This is a class 1 appeal No. 10176 of 2005 between Eugene Sarich and Ku-ring-gai Council in regard to Condition 5 of consent No. 1032/04 dated 2 February 2005 for a house at No. 54 Ayres Road, St Ives. Condition 5 said:

The height of the proposed building is to be reduced by a minimum of 500 mm, that is, finished ceiling level of the first floor is to be no higher than RL 145.352 in order to minimise undue impact on the streetscape. Amended plans clearly showing the reduced building height shall be submitted to and be approved by council prior to the release of the Construction Certificate.

2 The single issue in the appeal is:

1. Building height:
Whether the proposed building height is of such undue impact on the streetscape as to require the reduction of the height of the building by a minimum of 500 mm.

3 The applicable statutes in this appeal for the Residential 2C Zone under the Ku-ring-gai Planning Scheme Ordinance 1971 is found in Sch 9 subcll 1(a) and (b) and subcl 2(e).

1(a) To maintain and where appropriate improve the existing amenity and environmental character of residential zones and

(b) To permit new residential development only where it is compatible with the existing environmental character of the locality and has a sympathetic and harmonious relationship in adjoining development.

2(e) All new dwelling houses and additions to existing dwelling houses are of a height, size and bulk generally in keeping with that of neighbouring properties and where larger buildings are proposed they are designed so as not to dominate and so far as possible to harmonise with neighbouring development.

4 The applicant represented himself. Mr Sarich is a town planner acting as an agent for the owners Mr and Mrs A Kovdsy who attended the on-site hearing.

5 The respondent was represented by:

• Ms C Rose, solicitor of Wilshire Webb,
• Mr M Leotta, team leader planning and
• Mr J Kim, town planner from the council.

6 The other applicable requirements for residential development in that zone arose out of Development Control Plan No. 38, the control plan for residential zones. Part of the reason for Condition 5 was the definition of “storey”. In the DCP which said:

Storey for the purposes of this DCP, a storey shall include habitable floor level, any garage or basement level and subfloor areas exceeding 1 m in height above natural ground level.

7 About two-thirds of the two storey façade of the house facing Ayres Road had more than 1 m and up to 1.5 m measured from the ground to the underside of the ground floor slab. As a result under the DCP it qualified as a third storey. The façade complied with the 7 m maximum height limit and also complied with the envelope control in the Development Control Plan.

8 Mr Kim and Mr Leotta’s evidence was that the proximity of the house to the Ayres Road boundary and its height had an unacceptable visual impact on the streetscape that could be made acceptable by lowering the building by 500 mm on that elevation.

9 As a consequence it would also bring the house into compliance with the Development Control Plan maximum of two storeys. The applicable Objectives of the storey in cl 5.2.2 of the DCP said:

Limit the height of dwelling so that they do not dominate the tree landscape of Ku-ring-gai and maintain the integrity of existing streetscapes.

10 The Design Requirement control in the same clause was: “Relationship with the streetscape”.

11 The street address of the subject lot was 54 Ayres Road but the block was oriented with 22 m frontage to Carissa Avenue and 41 m to Ayres Road.

12 In a conventional subdivision the land would be addressed to Carissa Avenue. In fact the neighbour at Carissa Avenue was No. 4 and the subject lot could become No. 2. Whether the current address had something to do with the existing house having its front door facing Ayres Road, was not raised in evidence.

13 However, the proposal would reorient the main entry to the house to be from Carissa Avenue. Both Mr Kim and Mr Leotta said disregarding the reorientation of the front door in the proposal, Ayres Road was the dominant view of the house in the streetscape, and it too must comply with the statutory and control objectives.

14 They said, given Ayres Road is the main frontage, the house should have 10 to 12 m setback. But due to the unusual configuration of the lot they did not press that and accepted the proposed 5 m setback to a balcony on the north elevation and 7 m to the wall of the two storey section.

15 However, they maintained the house should be lowered to reduce visual impact. The adjoining house at No. 56 Ayres Road is a two storey house setback about 12 m but it did have a carport erected at about 5 m setback. The carport is a lightweight structure comprising only thin columns and a roof.

16 All the other houses nearby including the house on the opposite corner of Carissa Avenue and Ayres Road had setbacks between 10 and 12 m. That house however, had a much longer frontage to Carissa Avenue.

17 On the Carissa Avenue frontage the proposal had 9.5 m setback compared to the house at No. 4 which had about 10.5 m setback. The applicant said the constraints of the subject lot caused the design to be difficult to fit in. However, there had been changes to the plan notably removing the roof of the balcony on the north elevation facing Ayres Road. The house also stepped down the site from the Carissa Avenue frontage towards the north-east where the east end of the house was single storey.

18 It was also put that lowering the house by 500 mm would make it lower to Carissa Avenue with a slope down to the entry and garage that was undesirable in the design. The proposed vegetation to Ayres Road was said to soften the building on that side, and make it obvious to passers-by that it was the side boundary not the main frontage. The applicant believed that the relationship to the streetscape was appropriate.

19 It was also put that excavating the house could create overland stormwater flow problems, as the site took considerable flows from properties up the hill in heavy rain.

20 The council engineering staff had looked at the site and concluded the latter did not present any insuperable problems.

21 The council’s evidence said that the site has 2.5 m fall across it, and it is possible to excavate at the top of the site only in the south-west corner adjacent to No. 4 Carissa Avenue. Using that to lower the house by 500 mm would bring the living and family rooms at the east end of the house closer to the ground and reduce the number of steps needed. The ground floors and garage of the house would remain above ground level and there would be no need for retaining walls that might create dampness problems for the house.

22 A letter from the council to the applicant had suggested a split in levels from the garage into the house but that was not put as the only solution so long as the Ayres Road elevation was lowered by 500 mm.

23 The upper storey was set in from the lower storey with small pitched roofs having eaves at the ground floor ceiling level. The roofs sloped up to the walls of the second storey just under the window sills. There were a number of offsets in the exterior walls adding more articulation to the facades.

24 The council agreed that the Carissa Avenue elevation and setback was quite a good fit into that streetscape as proposed.

25 The Court’s attention was drawn to DCP No. 38 provisions for corner lots in cl 5.1.3. It seeks 12 m minimum with 14 m average setback to the main frontage and 4.5 m average with 3.8 m minimum to the side street boundary for two storey houses. The term main frontage is not defined but on the sketch of the corner lot setbacks it is shown as the shorter frontage.

26 The applicant said the proposal easily complied with the side setback requirement to Ayres Road. There were also substantial trees on the site, and on the corner of the streets, and on the Ayres Road frontage that would soften the visual form of the house. These trees were existing and there would be supplementary planting proposed in the landscape plan.

27 A height pole was moved from point to point on the Ayres Road and Carissa Avenue elevations of the proposed house to show the heights of the building to me.

28 I agreed that the Carissa Avenue elevation was quite acceptable in the streetscape and in relationship to the house on No. 4. On the Ayres Road frontage it seemed to me that the removal of the balcony roof on the Ayres Road elevation compared to the original as shown in Exhibit A had achieved a major reduction in scale and visual impact of the proposal as seen from Ayres Road.

29 The council controls for corner lots did not require side street setbacks to match that of other houses on deeper lots on that side street. To do so would make many corner lots undevelopable. The only other solution would be for corner lots to have larger dimensions than other allotments with an area such that it could achieve the main frontage setbacks to both street frontages.

30 The proposal had 5 m and 7 m setback to the two closest parts of the Ayres Road façade with other sections stepping back to 8.8 m and 11 m.

31 The council had accepted the rear setback of the house was in the Ayres Road frontage backing on to No. 56 Ayres Road. De facto, the council had accepted Carissa Avenue as the main frontage, as indeed it would become, once the existing house facing Ayres Road is demolished and the new house built to face Carissa Avenue.

32 Overall the visual streetscape impact of the house would be acceptable considering it is a corner lot. A 500 mm lowering would achieve little reduction. The storey control being flexible under the Development Control Plan, I find that there is no need to enforce it in this particular case.

33 Therefore the Orders of the Court are:

1. The appeal is upheld.

2, Condition 5 of Development Consent No. DA 1032/04 issued by Ku-ring-gai Council for a house at No. 54 Ayres Road, St Ives, is hereby deleted.
3. The exhibits are returned to the parties except Exhibits 2 and 7.
_____________________
K G Hoffman
Commissioner of the Court
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