Wassef v Ku-ring-gai Council (1)

[2007] NSWLEC 843

Land and Environment Court

of New South Wales

CITATION:

Wassef v Ku-ring-gai Council (1) [2007] NSWLEC 843

PARTIES:

APPLICANT
Rafat George Wassef

RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):

10870 of 2004

CORAM:

Tuor C

KEY ISSUES:

Section 96 Application :- modify development consent for a dwelling by increasing living area, reducing a deck and providing principle open space in under croft area accessed by concrete footpath.
Amenity of open space. Adequacy of information to assess impact on riparian zone, flooding and stability.
Impact on adjoining neighbours.
.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Ku-ring-gai Planning Scheme Ordinance

CASES CITED:

Stockland Development Pty Limited v Manly Council (2004) 136 LGERA 254

DATES OF HEARING:

03/12/2007

EX TEMPORE JUDGMENT DATE:

5 December 2007

LEGAL REPRESENTATIVES:

APPLICANT
In person

RESPONDENT
Dr J Smith, solicitor
of Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

5 December 2007

10870 of 2004 (1) Wassef v Ku-ring-gai Council

JUDGMENT

1 This is an appeal against the part refusal by Ku-ring-gai Council (the council) on an application under s 96 of the Environmental Planning and Assessment Act 1979 (the application) to amend a development consent (1717/01) which the Court approved on 11 May 2005 (Appeal No 10870 of 2004) to construct a two-storey house at 21 Rothwell Road, Turramurra (the site).

2 The application seeks to extend the length of the ground floor family room to the north by approximately 2.7m, this would result in a reduction of the deck, which is the primary outdoor open space of the dwelling. A concrete footpath along part of the western boundary and an approximately 64sqm concrete slab in the under croft area have been constructed.

3 On 30 November 2007, council issued a Notice of Intention to Issue an Order in relation to the concrete footpath and slab. This notice does not form part of these proceedings. Mr Wassef, the applicant, stated that both the footpath and the slab do not require consent, being minor works, or if they do, have been approved as part of the certification of the development. These issues relate to the Notice of Intention to Issue an Order and not the application. After lengthy discussion, Mr Wassef agreed that the application be dealt with on the basis of approval being sought for the concrete footpath, the extension to the family room and use of the under croft area as the principle open space of the dwelling. The application did not seek approval for the concrete slab.

4 The application also seeks to replace the partial underground water tank with an above ground tank and to amend the carport roof pitch. Council had approved this part of the application and imposed conditions that the water tank be screened with landscaping to minimise its visual impact.

The site and its context

5 The site is located on the north-western side of Rothwell Road with an area of 670.49sqm. The site is a rectangular shape allotment with a frontage of 15.15m to Rothwell Road and a depth of 44m. A creek transverses the site from the north-east corner to the south-west corner. The site falls from the rear to the creek by approximately 4.7m and from the front to the creek by approximately 3m. The site constraints include the creek and its riparian zone, flood, bushfire hazard and topography.

6 A two-storey dwelling raised on piers in the rear north-western section of the site, a separate double carport at the front south-eastern corner of the site and a suspended pathway linking the dwelling and the carport together, are currently under construction in accordance with the development consent approved by Nott C in Appeal No 10870 of 2004.

7 The site is located within a residential area with predominantly low density residential development. The adjoining environment is a mixture of single and two-storey dwellings.

Planning framework

8 The site is zoned Residential 2(c) under Ku-ring-gai Planning Scheme Ordinance (KPSO). The proposal is permissible with consent.

9 Ku-ring-gai Development Control Plan 38 (DCP 38) also applies to the site. Relevantly, cl 4.3.8 relates to useable space. It provides the following Assessment Criteria and Design Requirements:

Landscape development proposals should provide functional outdoor recreation spaces as part of overall design.

This may be achieved by ensuring landscape areas:

• are useable and relate well to indoor living areas;
• have a character that is consistent with or enhances the landscape character of the area;
• are located in consideration of noise, temperature, shade and screening;
• are not dominated by adjoining development (in terms of overshadowing and overlooking);
• provide at least one area of private useable open space which has a minimum depth of 5 metres and a minimum area of 50 sq. metres. On steep sites Council may consider a reduction in the 5 metre minimum depth requirement;
• contribute to energy efficiency;
• contain at least one north facing area providing adequate solar access.

The evidence

10 The hearing was conducted on site. The Court heard expert evidence from Ms T Bavin, landscape officer, and Ms S McCarry, town planner, for the council. Mr G Chmiel, 19 Rothwell Road, objected to the proposal. His main concern being the increase in visual bulk of the building, which he considered already was of significant bulk. He also raised concern about the appearance of the water tank.

11 The main contention raised by council in the Statement of Facts and Contentions is:

The extension of the family room would reduce the deck area which is the primary useable outdoor space for the site and would be in breach of Objective 4.3(d) – Open Space and Landscape and clause 4.3.8 of DCP 38.

Clause 4.3(d) of DCP 38 requires the development to “provide quality private and public open space areas for the amenity and enjoyment of residents”. Clause 4.3.8 of DCP 38 requires the development to provide functional outdoor recreation spaces as part of the overall design and at least one area of private useable open space with a minimum depth of 5 metres and a minimum area of 50 square metres except on steep sites, a reduction in depth may be considered.

The approved deck area is 7 metres long by 4.3 metres wide along the rear plus a side section of 3.3 metres long by 1.2 metres wide with a total area of 33.9 sq. metres. The proposed extension of the family room would reduce the rear deck to 1.5 metres wide by 7 metres long with a total area of 17 square metres, approximately half the area of the approved deck.

Due to the numerous site constraints, such as the creek running through the middle, the topography of the site and areas not being readily accessible from the main living room of the house the available private useable open space is limited to the rear deck area.

The proposed reduction of the deck area to only 17 square metres would provide insufficient private useable open space and would be in breach of cl 4.3.8 of DCP 38 and would compromise the amenity of the development for future residents.

Appropriate weight should be afforded to the provisions of DCP 38 as a properly founded town planning document incorporating an expression of Council’s intent for the planning of its area in accordance with the planning principles set out in Stockland Development Pty Limited v Manly Council (2004) 136 LGERA 254.

12 Mr Wassef stated that the open space to be provided in the under croft area was more appropriate than the deck as it afforded greater privacy, was larger and received good solar access. Mr Wassef considered the approved deck to be severely impacted by overlooking from adjoining properties and the rear lane way because it is set back only 0.9m. The additional bulk of the living area was acceptable and would have no impact on 23 Rothwell Avenue due to the landscape screening along the boundary. The increase in bulk when viewed from 19 Rothwell Avenue would have minimal impact. The additional length of the living area had no windows and therefore raised no privacy impacts.

13 Mr Wassef submits that the approved living, kitchen and dining area was only 29sqm and too small to meet the reasonable needs of a dwelling with four bedrooms plus study. He referred to the Statement of Evidence of Mr Vescio, who was the applicant’s town planning expert in Appeal 10870 of 2004. Mr Vescio supported the additional length of the living room and Mr Wassef submits that Commissioner Nott agreed with this opinion at para 8 of his judgment:

In deciding that development consent should be granted I agree in general with the assessment made by Mr Vescio, town planner, and the reasons given in the objection pursuant to State Environmental Planning Policy No 1 - Development Standards.

14 Dr Smith, for the council, submits that this paragraph referred to the issues relating to the SEPP 1 objection, not the overall development.

15 Further, Mr Wassef submits that when balancing the needs of the occupants and the benefits of the under croft open space area against the approved development the increase in the living area was reasonable.

16 Mr Wassef stated that the 1m wide concrete footpath reduced the width of the approved 2m wide landscape strip along the western boundary. However, it still provided adequate landscaping to screen the development. He supported this by a letter from Mr J Chetham, the landscape architect for the original development application.

17 Further, Mr Wassef submits that the under croft area was flat and even without the concrete slab would provide an area of useable open space. He did not consider that the use of the area raised any issues in relation to flooding, erosion or being within a riparian zone, although he provided no expert evidence or amended landscape plan to support this claim or to indicate the works required, including retaining walls, to provide a useable area.

18 Ms McCarry considered that the approved deck provided greater amenity than the proposed under croft area, being north facing and accessed directly off the living area. In relation to the privacy of the deck, she considered that if the applicant was concerned, a privacy screen could be provided on the eastern side. However, in her opinion the separation distances from the dwellings, the limited use of the laneway and the approved planting would provide acceptable privacy.

19 In Ms McCarry’s opinion the under croft open space area was not appropriate and did not meet the requirements of DCP 38 in that it was not directly accessible off the living areas, had poor solar access and was subject to flooding. No information had been provided about the landscaping or works to this area to assess its usefulness or the flooding impact. However, in her opinion it is likely that the area would have tables, barbecues, etc. and would require fencing as it adjoins the creek bank. These would generate issues for flooding and the riparian zone.

20 Ms Bavin shared these concerns and considered that the intent of the approved design was for the house to be on piles above the ground to enable the natural landform and watercourse to be maintained under the house, which would better retain the riparian zone and address flooding issues. She acknowledged that no details of the landscape treatment of the under croft area were provided in the approved landscape plan but the intent in Mr Chetham’s Statement of Evidence for the landscape treatment submitted as part of Appeal 10870 of 2004 indicated that:

…exotic groundcover and smaller trees are to be hand cleared so that the “Sydney Sandstone Gully Forest” plant community species are able to re-establish.

21 Ms Bavin considered that the clearing or levelling of the under croft area would be likely to impact on the riparian zone by the introduction of species such as grasses, however, there was insufficient information to assess this impact. In relation to the concrete path, Ms Bevan accepted that an access such as stepping stones could be provided and that adequate screen planting for privacy could be achieved with the lesser width than that approved. However, she raised concerns that the concrete footpath introduced a one metre wide impervious path into the two metre wide approved landscape strip which would prevent the planting of the significant landscape trees in the approved landscape plan. The footpath also required excavation and retaining walls and would impact on root zones, natural ground flow and the ability to stabilise the soil through re-planting.

Findings

22 The site is sensitive, being constrained by a riparian zone, vegetation and slope. Commissioner Nott, in approving the development application, recognised the sensitive nature of the site but balanced that against achieving a reasonable level of development. As part of this process amendments were made to the plans including deletion of the family area for which approval is now being sought. Considerable time was spent and evidence considered in the previous appeal. The proposal now before the Court does not change the facts or introduce new factors that would result in a different conclusion being reached. The only different circumstances of the case is the proposal to utilise the under croft area as the primary open space for the dwelling, however, no details are provided as to the works proposed or landscaping for this space to be useable, nor was any evidence provided to enable proper assessment of the impacts of using this space.

23 I accept the evidence of Ms Bavin and Ms McCarry that the area is unlikely to be suitable for use as the primary open space of the dwelling due to the constraints of flooding, riparian zone, stability and solar access. As well there is no direct access from the living areas of the dwelling. The area would also be overlooked from a number of rooms in 19 Rothwell Road and generally provides poor amenity, particularly when compared to the approved deck.

24 As stated above, the proposal now before the Court was considered in the previous appeal and the application amended to address the concerns raised by Mr Goodyer, the Court appointed planning expert, that:

Notwithstanding the extenuating circumstances presented by this site it is my opinion that the proposed building should be modified to reduce its apparent bulk and scale when viewed from number 23 Rothwell Road and improve the outlook from that property. In my opinion the living room, located at the front of the dwelling, should be deleted. This would open the outlook from the principal living areas of No. 23 Rothwell Road substantially. It is also possible to delete this room without unreasonably diminishing the internal amenity of the proposed dwelling, which has its principal living areas and private open space located at the rear of the dwelling. The proposed dwelling retains adequate internal access with four bedrooms and a study as well as living areas.

25 Further, in response to the amendments Mr Goodyer concluded:

The plans have been amended at my recommendation to increase the area of deck that adjoins the proposed living area. This deck now has a minimum dimension of 4.42 metres and a width of approximately 8.5 metres. This deck has a good relationship to the internal living areas and will also benefit from good solar access. In my opinion this deck provides suitable private open space for the future residents of the dwelling house in terms of their needs for outdoor entertaining or for children’s play areas. I note that there are also opportunities for recreation of a different sort in that part of the site not developed, ie, to simply walk and enjoy the forest vegetation and the creek.”

26 Mr Goodyer recognised that:

There is also some potential overlooking from the ground floor deck to the properties to the north-east (Nos. 24, 26 and 28 Montieth Street) and to No. 19 Rothwell Road. However, the separation distances together with existing vegetation is sufficient in my opinion to mitigate any potential loss of privacy.

27 Mr Vescio drew different conclusions in relation to the deletion of the family area, but provided no conclusive evidence on how the open space requirements of the dwelling would be met if the larger living area were retained.

28 Commissioner Nott accepted that the amendments, including the deletion of the living area, achieved an appropriate balance between the development and the constraints of the site. He stated:

Of course, it would be possible to have a much smaller development with fewer impacts, but it is a question of balance and reasonableness. I consider that the proposed development is environmentally acceptable on the subject land, which is a difficult site to develop….

29 In relation to the bulk of the building, Commissioner Nott found that:

By making the amendments referred to earlier, the bulk of the proposed building has been significantly reduced and the principal outlook from both Nos 19 and 23 has been improved.

30 There is no evidence or changed circumstances that would result in my reaching a different decision to Commissioner Nott.

31 I accept the evidence of Ms Bavin that the concrete footpath reduces the area available for planting of significant trees, soil stabilisation and water absorption. If access is to be provided it can be done in a more sensitive manner, such as stepping stones. Again, I note that Commissioner Nott specifically required a greater setback of the dwelling from the boundary to 23 Rothwell Road to provide significant vegetation. There is no evidence before me to depart from this decision.

32 On this basis the s 96 modification to extend the family room and for a concrete path is refused. The changes to the water tank and to amend the carport roof are approved subject to the conditions imposed by council.

Orders

1. The appeal is dismissed in relation to the extension of the family room, the construction of a concrete footpath on the western boundary and for the provision of open space in the under croft below the dwelling and forward of the front building line at 21 Rothwell Road, Turramurra.

2. Consent is granted to modify the development consent (1717/01) to replace the partial underground water tank with an above ground tank and to amend the carport roof pitch. The consent is modified as follows:

Amend Condition 1 to read:
1. The development must be carried out in accordance with the plans labelled 1/6B – 6/6B dated May 2005, drawn by Alfred Jury Pty Ltd, and the proposed landscape treatment 21R/LTP/E dated 9 May 2005, drawn by JCA, as amended by the plans labelled 5/6D dated November 2004 drawn by Alfred Jury Pty Ltd (incorporating amendment notations No. 1 and 3 dated 5 October 2007 only), and the Stormwater Plan 11-9STO./06 1/1 dated 11 September 2006 drawn by Merkorious Construction Pty Limited, except where amended by the following conditions:
Insert new conditions 1A and 1B as follows:
1A. To screen and minimise the visual impact of the rainwater tank, the perimeter of the tank is to be screened with landscaping capable of growing to a height to screen the tank. Details of the landscaping are to be submitted to Council, for Council’s approval, prior to the installation of the tank.
1B. To protect the amenity of the adjoining property the height of the rain water tank is not to exceed the height of the adjacent 1.8m timber fence.

3. The Exhibits, except Exhibit 2, may be returned.

___________________

Annelise Tuor
Commissioner of the Court
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