Wydner v Ku-ring-gai Council

[2005] NSWLEC 463

Land and Environment Court

of New South Wales

CITATION:

Wydner v Ku-ring-gai Council [2005] NSWLEC 463

PARTIES:

Applicant:
Andrew Wydner

Respondent:
Ku-ring-gai Council

FILE NUMBER(S):

10434 of 2005

CORAM:

Roseth SC

KEY ISSUES:

Development Application - Dual Occupancy :-

DATES OF HEARING:

22/08/2005

 
DATE OF JUDGMENT: 

09/07/2005

LEGAL REPRESENTATIVES:

Applicant:
Mr S Kondilios, solicitor of Maddocks Lawyers

Respondent:
Mr D Thomas, solicitor of Wilshire Webb

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT

OF NEW SOUTH WALES

Roseth SC

7 September 2005

10434 of 2005 Andrew Wydner v Ku-ring-gai Council

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

1. Senior Commissioner : This is an appeal against the refusal by Ku-ring-gai Council of a development application to alter and extend an existing house so as to convert it into an attached dual occupancy on lot 27 DP 6050, known as 2 Fitzroy Street Killara.

The site

2 The site is on the corner of Fitzroy and Norfolk Streets. It has a 19m-frontage to Fitzroy Street, 50m to Norfolk Street, and an area of 940m ² . There is a 4m fall to the front. A single-storey house now stands on the site. The two adjoining properties are 4 Fitzroy Street to the west, and 32 Norfolk Street to the north, both single-storey houses.

3 The character of the locality is single-storey and two-storey houses, spacious gardens, canopy trees and low fences.

The proposal and its history

4 The applicant proposes to extend the existing house horizontally, excavate a double garage under the Fitzroy Street front of the building, add a second storey over part of the extended ground floor, and demolish and re-build the existing double garage to Norfolk Street. Dwelling A will face to Fitzroy Street, while Dwelling B will face to Norfolk Street.

5 The applicant lodged the application in March 2005. Following notification the council received 16 submissions. The council refused the application under delegated authority in June 2005. The applicant lodged the appeal in May 2005.

Relevant planning instruments and policies

1. State Environmental Planning Policy 53 – Metropolitan Residential Development (SEPP 53) permits dual occupancy on the site, notwithstanding its prohibition in the Ku-ring-gai Planning Scheme Ordinance 1971 . The council has adopted its own guidelines for dual occupancy in the Dual Occupancy Development Control Code (the Code).

The issues

7 The council’s amended Statement of Issues contained five issues, of which three had been resolved before the commencement of the hearing. The remaining issues were consistency with the surroundings and the amenity of the private open spaces for proposed Dwellings A and B.

8 At the hearing Mr R Kinninmont, a council planner, identified the following concerns:

• The bulk of the proposal is too big for its context.
• The 1.6m high fence facing Norfolk Street is out of character.
• The solar access to the courtyard of Dwelling A is inadequate.
• The size of the private open space for Dwelling B is inadequate.
• The excavated garage facing Fitzroy Street is out of character with the street.

The objectors’ concerns

9 The Court heard the evidence of ten objectors, of whom three lived close to the site. The seven objectors whose concerns were of a general nature were:

• Mr S Shaw of 22A Warwick Street
• Ms W Rapee of 29 Norfolk Street,
• Mrs M Notley of 42 Norfolk Street,
• Mr J Whiteman of 30 Norfolk Street,
• Ms l Geiger of 46 Norfolk Street,
• Ms T Wood of 15 Highbridge Road, and
• Mr E Bahnsen of 23 Norfolk Street.

10 Mr Shaw expressed his dissatisfaction with SEPP 53 and the development that it results in. He mentioned several aspects of the proposal that did not comply with either SEPP 53 or the council’s code, ie built-upon-area, soft landscaping, single continued building, height, front setback, tree removal, private open space, impact on streetscape.

11 Mrs Rapee said that she opposed all developments under SEPP 53. The proposal was too bulky and the fence too high. She thought that the building’s height was 11m. Mrs Notley called the proposal a “monstrosity” . Mr Whiteman thought that the built-upon area was too large. Ms Geiger considered the proposal too big. Ms Wood was concerned about traffic impact. Mr Bahnsen was concerned about the high fence.

12 It is clear that the objectors do not like SEPP 53; however, given that the Policy is in operation, the Court must determine the application under it. It appears that some of the objectors misunderstood aspects of the proposal, for example that it is 11m high. In fact, the height is 6.7m. The bulk of the proposal is not only the objectors’ but also the council’s main concern. In response to this concern, during the course of the hearing the applicant offered to remove a bedroom from the second floor of Dwelling B. The removal of the bedroom considerably reduces the bulk seen from Norfolk Street. If the proposal had been submitted in this form, it is likely to have cause much less concern.

13 Mr B Krishnan, who lives at 32 Norfolk Street adjoining the site to the south, said that he was concerned about being overlooked in his front yard. It is clear from the plans, however, that Mr Krishnan will have a rear garden and a double garage near his side boundary. This is what usually occurs in suburban Sydney and should not be a cause of concern. Ms R Koenig, who lives at 41 Norfolk opposite the site, was concerned about seeing a two-storey building from her front. The removal of Bedroom 3 from Dwelling B will reduce the extent of the second storey visible from Ms Koenig’s property. Ms S Trudeau, who lives at 1 Fitzroy Street opposite the site to the north, said that she would see a three-storey building from her front. In my opinion, this is not correct as she will see a two-storey building, albeit with an excavated garage below.

Bulk

14 The proposal’s floor space is about 420m² . Its Floor Space Ratio (FSR) is about 0.45:1. The maximum FSR in SEPP 53 is 0.5:1. Mr Kinninmont said that the proposal’s bulk was excessive, though he agreed that a floor space of 420m ² was not unusual for a single house in Ku-ring-gai. Moreover, the proposal’s appearance is not very different from a large single house.

15 I accept, of course, that the existing houses in the locality are smaller than 420m ² . However, extensions, including second-storey additions are possible, even likely. In addition, the point about SEPP 53 is that it provides for some increase in density. Clause 32(a)(i) of SEPP 53 requires that a new development should contribute to an attractive residential environment with clear character and identity. I note that it does not require new development to be identical in scale to the existing. In my opinion, the proposal complies with cl 32(a)(i), when that subclause is read in conjunction with the Policy’s aims under clause 3.

16 I note that the council’s Code identifies 40% maximum built-upon area for two-storey dual occupancies. The proposal does not comply. The requirement is inconsistent with the maximum FSR provision of 0.5:1 in SEPP 53 for the following reasons. The Code requires that the first floor area should be no more than 40% of the total area. To comply with this, for a development that achieves a FSR of 0.5:1, the ground floor must be at least 30% of the site area. The area of two double garages, driveways to the garages and footpaths (elements that are not included in FSR but count as built-upon areas in Ku-ring-gai), is likely to be at least 150m ², which is 30% of a 500m² allotment, 20% of a 750m ² allotment and 15% of a 1,000m² allotment. Therefore to achieve a development with the FSR of 0.5:1, the built-upon area would need to be at least 60% for a 500m ² allotment, 50% for a 750m² allotment, and 45% for a 1,000m² allotment. I conclude from the above that compliance with the built-upon area requirement of the Code makes it impossible to achieve a FSR of 0.5:1.

The fence

17 Mr Kinninmont objected to the 1.6m-high fence along part of the Norfolk Street frontage. The fence occurs where the subject property now has a 1.8m-high paling fence. The height of the existing fence will therefore be reduced. The fence along Fitzroy Street and part of Norfolk Street will be 1.2m, a height that the council encourages.

18 In my opinion, the 1.6m-high fence is appropriate. If it were lower, the entrance to Dwelling B would become visible from the street. The high fence makes the proposal more like a single house than a dual occupancy. The existing streetscape will be maintained, except that a slightly lower masonry fence will replace the existing 1.8m-high paling fence.

Courtyard of Dwelling A

19 Dwelling A has a visually private courtyard of about 40m² and private open space over a large front garden that receives sunlight all day but can be overlooked from the street. Mr Kinninmont said he was concerned that the courtyard did not receive enough sunlight. The applicant presented shadow diagrams that indicated that the courtyard would be in shadow before 10am and after 1pm. This meets the requirements of AMCORD, a national resource document to which SEPP 53 refers.

20 A fair proportion of the shadow on the courtyard appears to be cast from a solid fence to its north. The fence separates the courtyard from private open space of the same dwelling. The applicant suggested removing the solid fence for three-quarters of its length, thus increasing the courtyard’s solar access. The proposed change came to late to allow Mr Kinninmont to comment, though it is likely that he would have welcomed the amendment. Whether it would have satisfied him is not known.

21 In my opinion, the sunlight on the courtyard of Dwelling A is adequate and the arrangement of a small visually private open space and a larger open space that can be overlooked from the street is acceptable.

Open space of Dwelling B

22 Dwelling B has a courtyard of about 60mDwelling B has a courtyard of about 60m ² adjoining the living room and a private open space of about 42m ² accessible, though not directly accessible, from the dining room. The distance between the dining room door and the courtyard is about 6m. This does not comply with the council’s Code, which requires either a courtyard of 100m ², or two courtyards of 75m² each. I note that the two courtyards together exceed 100m² . I note also that in addition to the courtyards there are other areas of open space available for landscaping. In the circumstances the open space provided for Dwelling B is adequate.

The excavated garage

23 Mr Kinninmont considered that the excavated garage under the existing house and facing Fitzroy Street was out of character. The only alternative he could suggest, however, was another double garage facing Norfolk Street. It seems to me that four garages facing Norfolk Street would certainly be out of character and a far worse solution than that proposed. In my opinion, the excavated garage is the best solution for accommodating four cars on the site.

Conclusions

24 Given the mandate for dual occupancy in the area, the application is an appropriate solution for two dwellings on the site. It has less floor space (and therefore bulk) than permitted by SEPP 53. It has preserved the canopy trees to which the site and the area owe their character. It complies fully with SEPP 53. Where it departs from the council’s Code, it does so to a minor and justifiable degree. For these reasons the appeal is upheld.

25 As noted above, during the hearing the applicant offered to make two amendments that improve the proposal. The Court granted the applicant until 26 August 2005 to produce amended drawings, and directed the council to file amended conditions also by 26 August 2005. In addition the Court granted the council until 31 August 2005 to comment whether or not the amended drawings reflect the applicant’s undertakings during the hearing. Since the council has not commented, I assume that it accepts the amended drawings as a true reflection of those undertakings.

26 For the above reasons the appeal is upheld.

1. The appeal is upheld.

2. Development application to alter and extend an existing house so as to convert it into an attached dual occupancy on lot 27 DP 6050, known as 2 Fitzroy Street Killara is determined by the grant of consent subject to the conditions in Annexure A.

3. The exhibits are returned except A, B, C, D and 8.

__________________
Dr John Roseth
Senior Commissioner