Tenacity Investments v Ku-ring-gai Council

[2006] NSWLEC 649

Land and Environment Court

of New South Wales

CITATION:

Tenacity Investments v Ku-ring-gai Council [2006] NSWLEC 649

PARTIES:

Applicant:
Tenacity Investments Pty Ltd

First Respondent:
Ku-ring-gai Council

Second Respondent:
Peter Dobrijevic

FILE NUMBER(S):

11234 of 2005

CORAM:

Roseth SC

KEY ISSUES:

:- s 96 application

DATES OF HEARING:

12/10/2006

 
DATE OF JUDGMENT: 

10/17/2006

LEGAL REPRESENTATIVES:

Applicant:
Mr A Sattler, solicitor of Sattler & Associates

Respondent:
Mr P Marincowitz, solicitor of Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

17 October 2006

11234 of 2005 Tenacity Investments Pty Ltd v Ku-ring-gai Council (First Respondent) Peter Dobrijevic (Second Respondent)

JUDGMENT

1 Senior Commissioner: This is an application under s 96 of the Environmental Planning and Assessment Act 1979 to amend a development consent granted by this Court on 2 May 2006 to an application to demolish the existing structures and erect four townhouses and a seven-level residential flat building on lots 1 and 2 DP 220159 (known as 2-4 Everton Street, Pymble) and lot 1 DP 21778 (known as 2 Pymble Avenue, Pymble).

The site

2 The site is L-shaped, with a total area of 2,921m2. The main part of the site falls steeply to the southwest, with a fall of about 20m. It is close to Pymble shopping centre and the railway station. To the northeast are apartment buildings with a frontage to Pacific Highway. Adjoining are No 4 Pymble Avenue, a one-to-two-storey house; No 6 Pymble Avenue, which adjoins for a short distance and contains a single-storey house; No 8 Pymble Avenue, a battleaxe block with a one-to-two-storey house; No 3 Livingstone Avenue, a dental clinic; and No 5 Livingstone Avenue, which is a new two-storey house. All the properties to the southwest are low-density houses and, with the exception of 4 Pymble Avenue and 5 Livingstone Avenue, are zoned for low density.

The proposal and its history

3 The applicant lodged the development application in June 2005 and amended plans on 11 October 2005. On 20 October the applicant lodged an appeal with the Court against deemed refusal. The matter was heard on 20 and 21 March 2006. On 4 April 2006 the Court handed down its findings, to the effect that the proposal in its then form was unacceptable; however, if the applicant accepted certain amendments suggested by the Court-appointed planning expert, Ms K Gordon, the impacts would be reduced and the proposal would be acceptable. The amendments required were:

· Delete Bedrooms 1, 2 and 3 and part of the Living Room in Unit 17 on Level 4, such that the southwest wall of the building does not extend beyond the line of Bedroom 3 in Unit 16.

· Delete Bedrooms 2 and 3 and the Living Room in Unit 22 on Level 5, such that no part of Level 5 projects beyond the southwest wall of Bedroom 1 of Unit 22.

· Delete Bedroom 1 in Unit 24 on Level 6.

(I note that the above amendments will require replanning of the apartments and, on Level 4 at least, may result in the loss of an apartment. The applicant has free choice on how to rearrange the plan internally as long as it is within the above envelope.)

· Provide the balconies on Level 2 with a 1m wide planter box along the entire length of the southwest edge of the balconies. The outer edge of the planter box is to have a cantilevered “lip” projecting 750mm. (If the applicant wishes to increase the width of the balconies to 3m, it should do so by taking an additional 1m out of the living rooms.)

4 At the hearing on 4 April 2006 the applicant accepted the amendments. Amended drawings were filed. Ms Gordon reported that they reflected the decision of the Court. As a result the Court granted consent on 2 May 2006.

5 On 8 June 2006 the applicant lodged a s 96 application with the council seeking modification of the consent in three respects:

· Amend the interior of the building.

· Increase the floor area of level 6.

· Amend the conditions of consent.

6 The council notified the s 96 application and received seven objections. The hearing of the s 96 application took place on 12 October 2006.

The evidence

7 Ms Gordon told the Court that, in her opinion, the additional floor area on level 6 was excessive and would present an unacceptable bulk to at least one of the neighbours. She would, however, accept a reduced additional floor on level 6, as this would minimise the extent to which this level could be seen.

8 The Court heard the evidence of four objectors. Ms J Zora of 108/5-9 Everton Street said that the additional floor space at level 6 would reduce her outlook. On further examination of the level of her apartment, it appears that her outlook would be disturbed only to a small extent; however, the two apartments above her (whose owners and occupants have not objected) would be significantly affected. Mr B Wickham, who lives at 6 Pymble Avenue, said that the additional floor space on level 6 would add to the bulk he would see from his property. Ms Gordon confirmed that part of the floor would be seen, though the extent of what was visible depended on the location within Mr Wickham’s property from which one viewed it. Mr D V Ming, who lives at 5 Livingstone Avenue adjoining the property to the southeast, said that he was concerned with the extra bulk visible from his property. Ms Gordon agreed. Her suggestion to reduce the extent of the additional floor arose mainly out of Mr Ming’s objection.

9 Mr P Dobrijevic, who lives at 8 Pymble Avenue adjoining the site to the southwest, had been joined to the proceedings as the second respondent. Of all the objectors, Mr Dobrijevic’s property is in the most vulnerable position because it is in a depression and his site adjoins the apartment building rather than the townhouse section of the proposal. Mr Dobrijevic said that he considered the Court’s earlier decision fair. Ms Gordon said that the additional floor would be visible from No 8; however only to a small extent and not from those locations on the property that were widely used.

10 All four objectors said that they were satisfied with the Court’s May 2006 decision and objected to more bulk being added to the building by way of an application to amend the proposal.

Findings

11 The s96 application is in three parts: internal alterations, amendments to the conditions and the additional floor area on level 6. There is no objection to the internal alterations. While the council agreed with many of the changes to the conditions requested by the applicant, three conditions remain in dispute. In addition, the second respondent, Mr Dobrijevic, asked the Court to retain two more of the original conditions. I deal with the disputed conditions at the end of the judgment.

12 I turn to the most contentious part of the application, the additional floor space at level 6. Despite Ms Gordon’s recommendation and the council’s acceptance that a reduced version of the applicant’s plans is acceptable, the objectors have persuaded me that I should not approve this part of the application.

13 In Seaside Property Developments v Wyong Shire Council [2004] NSWLEC 117. Bly C established a planning principle regarding development at zone interfaces.

As a matter of principle, at a zone interface as exists here, any development proposal in one zone needs to recognise and take into account the form of existing development and/or development likely to occur in an adjoining different zone. In this case residents living in the 2(b) zone must accept that a higher density and larger scale residential development can happen in the adjoining 2(c) or 2(d) zones and whilst impacts must be within reason they can nevertheless occur. Such impacts may well be greater than might be the case if adjacent development were in and complied with the requirements of the same zone. Conversely any development of this site must take into account its relationship to the 2(b) zoned lands to the east, south-east, south and south-west and the likely future character of those lands must be taken into account. Also in considering the likely future character of development on the other side of the interface it may be that the development of sites such as this may not be able to achieve the full potential otherwise indicated by applicable development standards and the like.

14 The subject site is on a zone interface, on the other side of which is low-density housing, the zoning of which precludes increased density. All the neighbouring sites (and especially 8 Pymble Avenue) are in a vulnerable position. Apart from sloping land and zone interface, the sites are also vulnerable to impact because they are in a hollow and to the south of the proposed building. In addition, the zoning interface is between five-to-six storey zone and a low-density zone of one or two storeys. Not even a street separates the zones. Commissioner Bly’s principle is therefore particularly applicable.

15 I am aware that the proposed extension to the floor area on level 6 would not have a major additional impact on the neighbouring sites. However, part of the extension could be seen and would therefore be a minor addition to an impact that is already at the limit of tolerability. I note that in April 2006 the applicant accepted the amendments that were approved in May 2006. There is little justification then for an application to extend the bulk of the building in June 2006.

16 I do not accept the applicant’s submission that the additional floor space will lead to a better community outcome because it will increase the amenity of the building’s future occupants. There is no difficulty of achieving a high level of amenity within the building envelope already approved.

Conditions

17 Three conditions, Nos 69, 89A and 144 are in dispute. Condition 69 requires the agreement of owners, including the council, for rock anchors adjacent to their property. The applicant wants to exclude the council and confine the condition to permanent rock anchors. I heard no evidence why temporary anchors should be excluded.

18 Condition 89A requires the applicant to submit to the council certain documentation with respect of an existing drainage easement. The council is not willing to change the condition and I see no reason why it should not remain.

19 The applicant wants to delete Condition 144, which requires the completion of the landscaping before the Certificate of occupation is issued, as well as its continued maintenance. I see no reason for the deletion of this condition.

20 Mr Dobrijevic objected to two conditions, which the council had amended in response to the applicant’s request. Given that the applicant and the council have agreed to the form of the conditions, and they reflect the council’s current thinking, it seems to me better to leave them in the agreed form.

Orders

1. The application under s 96 of the Environmental Planning and Assessment Act 1979 to amend a development consent granted by this Court on 2 May 2006 to an application to demolish the existing structures and erect four townhouses and a seven-level residential flat building on lots 1 and 2 DP 220159 (known as 2-4 Everton Street, Pymble) and lot 1 DP 21778 (known as 2 Pymble Avenue, Pymble) is approved in part.

2. The internal alterations are approved.

3. The additional floor on level 6 indicated in the application is refused.

4. The conditions are amended as shown in Annexure A.

5. The exhibits are returned except Exhibit 11.

__________________
Dr John Roseth
Senior Commissioner