Shetab v Ku-ring-gai Council

[2004] NSWLEC 387

Land and Environment Court

of New South Wales

CITATION:	Shetab v Ku-ring-gai Council [2004] NSWLEC 387
PARTIES:	APPLICANT Mr & Mrs Shetab RESPONDENT Ku-ring-gai Council
FILE NUMBER(S):	11528; 11529; 11530 of 2003
CORAM:	Brown C
KEY ISSUES:	Development Application :- erection of dwelling subdivision conversion of dwelling to dual occupancy streescape/character solar access
LEGISLATION CITED:	Ku-ring-gai Local Environmental Plan 194 State Environmental Planning Policy No. 53
CASES CITED:
DATES OF HEARING:	05/07/2004
DATE OF JUDGMENT:	07/06/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr D Baird, solicitor SOLICITORS Maddocks RESPONDENT Mr J Reilly, solicitor SOLICITORS Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

6 July 2004

11528, 11529 and 11530 of 2003 Mr and Mrs Shetab v Ku-ring-gai Council

JUDGMENT

1 These proceedings involve three separate related appeals in relation to the deemed refusal by Ku-ring-gai Council of three development applications for the property on the corner of Nelson Road and Havilah Road, Lindfield (the subject site).

2 Appeal 11528 of 2003 seeks the construction of a new two-storey dwelling as a detached dual occupancy. Appeal 11529 of 2003 seeks the Torrens Title sub-division of the new dual occupancy development. Appeal 11529 of 2003 seeks internal alterations to the new two-storey dwelling to create two separate dwellings in addition to alterations and additions to the existing dwelling on the subject site.

3 The subject site is lot 16 in DP4480 and it is known as 24 Nelson Road, Lindfield. It is rectangular in shape with a frontage to Nelson Road of 18.29 m and a frontage to Havilah Road of 60.96 m, giving a total area of 1100 m2. A brick single storey dwelling is located on the Nelson Road frontage and a garage is located at the other end of the subject site with access off Havilah Road. The Havilah Road footpath area is particularly wide and contains a significant amount of vegetation that screens the rear yard of the subject site from the road. Development in the area surrounding the subject site consists mainly of detached dwellings with some recent dual occupancy development.

4 The subject site is currently zoned Residential C2 under the provisions of Ku-ring-gai Local Environmental Plan 194 (LEP 94). This planning instrument provides specific guidelines for dual occupancy development at cl. 25E and 25F, as well as general controls for development in residential zones at cl. 25D. The subject applications, however, are captured by the savings provisions in cl. 5 of LEP 194 where the provisions of State Environmental Planning Policy No. 53 - Metropolitan Residential Development (SEPP 53) apply as the development was made but not determined prior to the commencement of LEP194. The effect is to make SEPP 53 the applicable planning instrument for the assessment of the applications.

5 The council’s Dual Occupancy Development Control Code was also tendered but must be considered in light of cl. 5(2) of SEPP 53, even putting aside whether the code is a relevant consideration under this clause, if there is any inconsistency SEPP 53 must prevail.

6 The respondent filed a Statement of Issues containing nine separate issues, although all were not pressed. The remaining issues can be conveniently grouped into the following areas:

1. Will the proposal have an unacceptable impact on streetscape and character of the area?
2. Does the proposal provide adequate private open space?

7 The other issues dealing with tree retention, landscaping, garbage disposal and accessibility were either addressed through joint reports, conditions of approval or not of sufficient severity to warrant the refusal of the application.

8 Evidence on the outstanding issues was provided by Mr Mark Adamson, a town planner for the council, and Mr Andrew Minto, also a town planner for the applicant.

9 On the issue of streetscape and character, Mr Minto maintained that the new two-storey development is of a height, scale and building form which is consistent with both the existing and future character of the locality and will not present any undue impacts on the streetscape. In Mr Minto’s opinion, the proposed building provides for an articulated and modulated facade with generous setbacks from side boundaries. He also relies on a recent zoning change that provides for residential flat development up to four storeys in height, on the eastern boundary.

10 Mr Adamson takes a different view. He sees the character of the area as typically single detached dwellings on large landscaped lots with generous setbacks. Put simply, landscaped open space dominates built form. In his opinion this balance is reversed in the proposed development with built-form now dominating landscaping. The new dwelling is located a minimum of 3.5 m from the front boundary, whereas existing setbacks are in the order of 8 m.

11 In determining this issue, cl. 32 of SEPP 53 states that consent must not be granted unless the court is satisfied that adequate regard has been given to a number of principles. Relevantly, cl. 32(a) states that the proposal should “contribute to an attractive residential environment with clear character and identity.” Clause 32(h) states that where practical a proposed development should maintain reasonable neighbourhood amenity and appropriate residential character by “providing building setbacks that progressively increase as wall heights increase to reduce bulk and overshadowing.”

12 As I understand, there was little disagreement that the character of the area was similar to that outlined by Mr Adamson. Based on the site view I would concur with this general description. Using this description of character in conjunction with the requirements in cl. 32, I am inclined to agree with the conclusions of Mr Adamson for a number of reasons.

13 The setback to Havilah Road is a minimum of 3.5 m, although I acknowledge that other parts of the building are set back up to 7 m. I am, however, not convinced that this or the design overcomes the bulk that is created by the proximity to Havilah Road. The building extends beyond the setbacks of the adjoining dwellings at 19 Havilah Road and the existing dwelling on the subject site, even though this setback is a secondary setback; the principal setback of some 9 m is to Nelson Road.

14 The bulk of the building is also exacerbated by the design that provides a two-storey vertical wall at its closest part to the street. While the landscaping plan attempts to reinstate a vegetated character to the setback area, in my view, the inadequate setback does not allow for this to be achieved in a meaningful way if it is to be measured against the existing vegetated character of the area. While the character of the area is made up of a number of different elements, some are more prominent in determining the character than others. In my view, setbacks fall within this category. The concern over setbacks relates only to the front setback as the side setbacks are generous and consistent with other residential properties in the area.

15 I also give little weight to Mr Minto’s evidence on the effect of the adjoining higher density zoning. The adjoining site is within a different zone and will undoubtedly have a different building form, but other elements, such as setbacks and landscaping, could be consistently applied across the different zones to maintain consistency in some elements that make up the character of the area. I am also mindful that the properties to the south, north and west have the same zoning as the subject site.

16 In relation to cl. 32(a) and cl. 32(h), I find that inadequate regard has been given to maintaining an attractive residential environment and maintaining appropriate residential character. For this reason the appeals must fail.

17 In terms of solar access, cl. 32(c) states that a development should, where possible, ensure “adequate sunlight to substantial areas of private open space.” The private open space areas for the existing dwelling and the proposed dual occupancy are located generally to the south of the dwellings and within the setback areas to Havilah Road. There was general agreement, based on the shadow diagrams prepared by the applicant, that the southern private open space areas received, at best, limited sunlight in mid-winter.

18 Mr Minto maintained that the open space areas in the setback provided good solar access and balanced the less than optimal solar access in the southern private open space areas. Mr Adamson disagreed. He stated that these areas provided no privacy as they would be visible for pedestrians walking along Havilah Road. In his opinion, the setback areas were not appropriate as private open space.

19 On this issue I also agree with Mr Adamson. There could be an argument that setback areas could be used for private open space if the other more private areas provided some solar access in winter. I am not, however, convinced that the setback areas should totally replace other more private areas. The subject site has no particular constraints that justify such a design beyond the applicant’s desire to erect a building with the floor area proposed. In my opinion, inadequate regard has been given to providing sunlight to substantial areas of private open space.

20 Mr Adamson also raises the inadequacy of the private open space for the upper dwelling as it was restricted to a balcony of some 160 m2. While this area satisfied the requirements for AMCORD, I agree with Mr Adamson that while this may be acceptable for a residential flat building, it is not appropriate for a dual occupancy development. In saying this, the lack of specific controls in SEPP 53 may not support a refusal of the application for this reason alone.

21 For the foregoing reasons, the appeals are dismissed and exhibits may be returned.

22 The Orders of the Court are;

1. The appeals are dismissed and the development applications are refused.

2. The exhibits are returned.

nmc/ljr