Williams v Ku-ring-gai Council
[2007] NSWLEC 378
•6 June 2007
Land and Environment Court
of New South Wales
CITATION: Williams v Ku-ring-gai Council [2007] NSWLEC 378 PARTIES: APPLICANT
Ross Williams v Ku-ring-gai CouncilFILE NUMBER(S): 10052 of 2007 CORAM: Bly C KEY ISSUES: Development Application :- residential flat building, carparking, retention of trees, building setbacks, resident objections, urban design. LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Ku-ring-gai Planning Scheme Ordinance
Ku-ring-gai Development Control Plan No. 55
State Environmental Planning Policy No 1 - Development StandardsDATES OF HEARING: 06/06/2007 EX TEMPORE JUDGMENT DATE: 6 June 2007 LEGAL REPRESENTATIVES: APPLICANT
Mr S. Kondilios, solicitor
of MaddocksRESPONDENT
Ms C. Bracks, solicitor
of Home Wilkinson Lowry
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESBly C
10052 of 2007 Ross Williams v Ku-ring-gai Council6 June 2007
This decision was given extemporaneously. It has been revised and edited prior to publication.
JUDGMENT
1 This appeal relates to Development Application No. 5073/06 which is for the demolition of an existing dwelling house and the removal of a number of trees and the construction of a 3-storey residential flat building comprising five dwellings with basement car parking at 10 Shinfield Avenue, St Ives, being lot B in DP383466. The site is triangular in shape with a frontage of 42 m to Shinfield Avenue and an area of 1,267 sq m.
2 The site is situated in an area containing a mixture of low and medium density dwellings and is within walking distance of the St Ives Shopping Centre. The streetscape surrounding the site is one which exhibits substantial landscaping with large canopy trees within the setbacks of buildings.
3 The adjacent site to the north and west of the site is developed with 30 dwellings in the form of housing for the aged or disabled. Further to the east beyond a narrow access strip to the 30 these dwellings is a detached dwelling house.
4 The site is zoned 2(D3) under the Ku-ring-gai Planning Scheme Ordinance (“the PSO”) and in this zone residential flat buildings are permissible with development consent. Relevantly, the adjoining development to the west and north is included in the residential 2(c) zone as is the narrow strip of land to the east of the site which zone does not provide for development at the same density as the 2(D3) zone that permits development up to 5-storeys in height.
5 Relevant to this appeal, cl 25L of the PSO requires that the third and fourth storey of any building on land within the 2(D3) zone must be set back at least 9 m from any boundary of the site of the building with land, other than a road, that is not within the zone. The objective of this development standard is to provide a transition in the scale of buildings between certain zones.
6 As a consequence of the different zoning of the adjoining lands, the requirement of cl 25L is applicable. Also of relevance to is the objective of Division 3 of the PSO in cl 25C(2)(C) that provides that the objectives of this part include to achieve high quality urban design and architectural design.
7 Also applicable to this site is the Ku-ring-gai multi-unit housing Development Control Plan No. 55. Relevant to the matters in issue is s 4.3 that deals with setbacks and in particular s C-1(B) requires that a street boundary setback be provided in accordance with a setback zone between 10 and 12 m from the boundary and that no more than 40% of this zone may be occupied by a building footprint. The associated design objectives O-1 and O-4 provide for buildings being set behind gardens dominated by canopy trees which screen the buildings, soften the urban form and maintain the garden character of Ku-ring-gai as well as providing a consistent urban form providing definition of the street edge.
8 The application was notified in accordance with council’s notification policy and four submissions were received expressing various objections to the proposal. Those objections raise matters of non-compliance with council’s planning controls, increased traffic congestion resulting in reduced safety, amenity impacts on the neighbouring townhouses and the appearance of the proposed building.
9 When the hearing began on site, the Court heard from Ms C Firth of 8 Pemberley Grove, the secretary of the body corporate; Mr Legovich, the treasurer of the Pemberley Grove body corporate and from Mr G. Bouchier of 19 Shinfield Avenue, St Ives. Ms Firth provided the Court with a comprehensive objection to the proposal which was explained by her as essentially involving amenity impacts in terms of loss of privacy, loss of light and the fact that the adjoining townhouses would end up simply looking at a brick wall. She and Mr Legovich made reference to the failure of the proposal to comply with the requirements of the PSO and the DCP, suggesting that there was no reason why the proposal should not comply. Mr Bouchier observed that the driveway into and out of the site would be directly opposite his driveway and could further reduce the safety of his utilisation of his own driveway when he is reversing from his property on to Shinfield Avenue.
10 The application was refused by the council and the reasons for refusal in essence became the issues in dispute. Those issues involve the proposal’s failure to provide for the retention of a number of significant trees on the site; the inadequacy of the objection under State Environmental Planning Policy No 1- Development Standards (“the SEPP 1 objection”) in relation to the non-compliance with the development standard in cl 25L of the PSO; the non-compliance with the front setback requirements in the DCP; the failure of the proposal to achieve a high quality urban design and architectural design and a deficiency in car parking. The design has subsequently been modified principally by moving the building one metre to the south, closer to Shinfield Avenue. This has the benefit of facilitating the retention of a significant swamp cypress.
11 The relocation of the building in the context of the location of this tree was considered by the arborists Mr I English and Mr A Moreton who concluded that, subject to appropriate protection measures now referred to in the without prejudice conditions, that this tree would survive the redevelopment of the site. Other trees initially thought to be significant were not supported by the arborists for retention and as a consequence, and taking into account the retention of other large trees at the rear of the site, the council did not press the trees issue. The issue of car parking was also resolved to the council’s satisfaction by certain adjustments to the internal layout of the building. Hence, the issues for the determination of the Court involve the front and side setback requirements and the question of whether the proposed development achieves a high quality urban design and architectural design.
12 To assist the Court in dealing with these issues, a joint statement was prepared by Mr A Minto, the applicant’s town planner and Mr G Bolton, the council’s executive assessment officer who is a qualified health and building surveyor.
13 The matter of concern to the neighbours to the west as represented by Ms Firth, were mainly matters of privacy and the appearance of the building. With changes to the windows on the western wall of the proposed building, the town planning experts agreed that the three metre setback from the western boundary was satisfactory and that any impacts on the neighbouring townhouses would be within reason. Taking this into account, together with my own observations as to the scale and form, including the building’s articulation and window arrangement along the western side, I have not been persuaded that the development would adversely affect these neighbouring properties.
14 As indicated earlier, cl 25L is applicable and in this case requires that the third level of this proposed building should be setback 9 m from the boundary. The actual setback at the third level is 3.6 m and in part 4.6 m, plainly failing to meet the 9 m requirement. Mr Bolton and Mr Minto disagreed as to whether the objective of providing a transition in scale is met.
15 On the east side of the building there are also significant elements of the building that do not comply with this 9 m setback development standard. My understanding of this development standard is that it seeks to ensure that there is a transition in scale from the anticipated 5-storey buildings permissible in the zone down to smaller scale buildings in any other adjacent zone. In other words, where a building is likely to be significantly taller than its neighbours in the adjoining zone, then a significant setback is required so as to provide the necessary transition.
16 Mr Minto in his SEPP 1 objection addressed this matter and concluded that strict compliance with the provisions of the development standard would be unreasonable or unnecessary because there are no detrimental impacts directly attributable to the location of the proposed third level within the setback with respect to the neighbouring property, taking into account matters of overshadowing, privacy, bulk and scale and loss of views.
17 Having considered this issue carefully whilst on site and taking into account the manner in which the form of the proposed building will relate to its neighbour, I have decided that the SEPP 1 objection should be upheld principally for the reasons given by Mr Minto. I particularly note that the proposed building is lower than its neighbour to the west and as a consequence I accept that there is no excessive height that would require a setback of the kind envisaged by the development standard. Taking also into account the articulation and form of the building, this confirms my view that on its merits the third level setback of the building is satisfactory.
18 I have no concerns in relation to the setback from the eastern boundary which adjoins the narrow access way because that access way is, as agreed, incapable of being developed, being only 4.5 m wide and bearing also in mind that the land on to the east of that access way is, like the subject land, included in the 2(D3) zone.
19 This brings me to the question of the setback from Shinfield Avenue. As already mentioned, the DCP requires that the building be setback from its street alignment between 10 and 12 m and that within a 2 m strip the building footprint should occupy no more than 40% of what is described as the setback zone. With part of the building having a setback of nine metres, and other parts having setbacks of 11.5 m, and 9.6 m, plainly there is a significant non-compliance. Moreover, as Mr Bolton explained, some 90% of the building’s footprint impinges upon the setback zone, although I recognise that a proportion of this non-compliance comes about as a consequence of including the front entry porch in the analysis.
20 Whilst Mr Bolton was generally of the view that the proposed setback areas could be landscaped, he was of the opinion that this would be improved by a compliance with the setback requirements. He was also concerned that a consistent urban form providing definition of the street edge would not result if the setback requirement was not complied with. Mr Minto disagreed. He pointed out that the actual setback was very much in line with the setback of the neighbouring property to the west and that the setback area could be suitably landscaped to meet the objectives of the standard. As a consequence of an inquiry by the Court as to whether the western element of the building could be moved back to its original position before the entire building was repositioned (in the interest of protecting the significant tree), the applicant has offered to move this part of the building, (leaving the eastern part unchanged), to the north a distance of one metre thus reducing the extent to which there is a non-compliance with the setbacks and the setback zone coverage. This amounts to an area of about 8 m by 1 m.
21 Subject to this increased setback, I would find that the proposal is, in terms of the setback requirement’s, satisfactory. I have reached this conclusion taking into account the fact that the site is by virtue of its configuration a difficult site and the relocation of the building results in the protection of an important, and as I now understand, a rare species of tree.
22 I am also satisfied that, having considered the landscape plan, an appropriate landscape setting for this development is entirely possible and would meet the objective of having a building set behind gardens dominated by canopy trees which screen the building. I also note that the applicant has agreed to provide additional significant trees that will eventually add to the canopy within the footpath area.
23 I have also taken into account the alignment of the building with respect to the existing development to the west. Whilst I would expect that if land to the east is developed it would be expected to comply with the setback requirements (unless there were special circumstances) but even if such a redevelopment were to occur, then the difference between a complying development (on the adjoining property) and the subject development which is does not comply would not be so significant as to be of concern and require this application to be refused.
24 Finally, and taking all of these matters into account, including what I have said about the side setbacks, a careful reading of the architectural plans which whilst they lack certain readability, a great deal of detail has been provided and they reflect a design that is interestingly articulated in its three dimensions including setbacks at the upper levels and stepping down the slope in its presentation to the street. These matters all lead me to the conclusion that whilst the proposed building may not achieve a high quality of urban and architectural design, it is certainly of sufficient quality to warrant approval.
25 The orders of the Court are therefore that:
- 1. The appeal is upheld and Development Consent granted subject to the conditions in Exhibits 6, G and J which together with Exhibit A are retained.
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- T A Bly
Commissioner of the Court
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