Xiang Rong (Australia) Investments P/L v Ku-ring-gai C

[2005] NSWLEC 599

Land and Environment Court

of New South Wales

CITATION:

Xiang Rong (Australia) Investments P/L v Ku-ring-gai C [2005] NSWLEC 599

PARTIES:

APPLICANT
Xiang Rong (Australia) Investments Pty Limited

RESPONDENT
Kur-ring-gai Council

FILE NUMBER(S):

10506 and 10507 of 2005

CORAM:

Hoffman C

KEY ISSUES:

Development Application :- four dwellings and subdivision - swimming pools - visual and acoustic - privacy - solar access and design for climate - visual bulk and scale - tree preservation - landscaping - stormwater - setbacks - retaining walls.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
State Environmental Planning Policy (SEPP) No. 53 Metropolitan Residential Development
Ku-ring-gai Planning Scheme Ordinance (KPSO) 1971

DATES OF HEARING:

30/08/2005, 02/09/2005, 21/09/2005 and 10/10/2005

 
DATE OF JUDGMENT: 

10/26/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr S. Kondilios, solicitor
of Maddocks

RESPONDENT
Mr R. K. Graham, solicitor
of Abbott Tout Solicitors

2nd RESPONDENT
Mr I. Hemmings, barrister
instructed by Mr M. McMahon, solicitor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

26 October 2005

10506-07 of 2005 Xiang Rong (Australia) Investments Pty Limited v Ku-ring-gai Council

JUDGMENT

1 This is two Class 1 Appeal Nos. 10506 and 10507 of 2005 between Xian Rong (Australia) Investments Pty Limited and Ku-ring-gai Council in regards to the refusal of a proposal for 4 dwellings and the subdivision of No. 82 Pymble Avenue, Pymble into 2 lots.

2 The subdivision had been approved by the council. Lot 1 was proposed to have a detached dual occupancy and a swimming pool in the courtyard of each dwelling. These dwellings are called Nos 1 and 2 and are involved in Appeal 10506 of 2005.

3 Lot 2 was proposed to have an attached dual occupancy with a swim pool in the courtyard of each dwelling. These dwellings are called Nos 3 and 4 involved in Appeal 10507.

4 The area of lots 1 and 2 combined in the original lot 32 DP 3085 was about 4800 sq m. Lot 1 is a battleaxe lot of 2461 sq m including the access handle. The main part of the lot is 35 m wide and 53 m deep. Lot 2 fronts Pymble Avenue and is 2414 sq m in area with a width of 29 m and depth of 85 m. The access to Lot 1 runs along its north/east side. The front 50 m of Lot 2 contains endangered vegetation community known as Sydney Turpentine/ Iron bark forest. It is protected under s 88B instrument created at the time of subdivision such that no dwellings can be erected therein.

5 The land rises gently from Pymble Avenue up to a crest at about the common boundary of lots 1 and 2. It then slopes gently down to the east. The existing house is on the crest and is to be demolished. The protection of the forest in lot 2 requires the new houses to be located at the rear of lot 2 also on this crest. The houses on lot 1 are located also on the crest so that their courtyards at the rear of lot 1 can be more private.

6 This means the 4 houses share an entry car court between them with a centre landscape feature. The car court provides a shared vehicular driveway to their respective garages. Lot 2 has reciprocal right of way along the access handle to lot 1 from Pymble Avenue.

7 The houses are large 2-storey conventional brick and tile design.

8 The applications are made under the statute State Environmental Planning Policy (SEPP) No. 53 Metropolitan Residential Development. The proposal is in the Residential 2(c) zone under the Ku-ring-gai Planning Scheme Ordinance (KPSO) 1971 as amended. In that zone dual occupancy is not permitted so the proposal relies on SEPP 53 for permissibility. There are a number of performance criteria and numerical standards in the applicable statute. One of these is the maximum F.S.R of 0.5:1. The final proposal on lot 1 is 0.42:1. the final proposal on lot 2 is 0.27:1. The maximum build upon area requirement is 60%. Both proposals are well below that.

9 At the first hearing date some objectors alleged that they had not received any notice of the hearing and only came to the site after neighbours informed them the night before. Amended plans tabled on site were described to them. One objector who had caused an objection to be lodged by a consultant town planner was unable to have that expert attend at such short notice.

10 It came to pass during the on-site visit that the plans did not show some large existing trees on lot 1, and that the impact of excavation and/or erection of buildings and retaining walls in relation to some other trees had not be assessed.

11 An adjournment was granted to enable assessment and consultation and for the objectors to consider their positions on the amended plans. During the adjournment some of the objectors sought to be joined and that was allowed by separate decision and directions on 21 September 2005.

12 On resumption further amended plans were tendered and joint expert reports from the applicant, the respondent and the second respondent town planners together with an Aborist report and an 8 part test assessment under s 5A of the Environmental Planning and Assessment Act 1979.

13 At the final hearing date the applicant and the respondent had only one issue between them and had agreed on draft conditions of consent. The one issue was some draft conditions still required bonds for on site landscaping. Some of the agreed conditions were yet to be written down so directions were given to submit them within 3 days after the final hearing date.

14 The second respondent had 3 issues. The first was in respect of bulk of proposed dwelling 2 as seen from the private open space and family room and dining rooms of No. 88 Pymble Avenue. The second was that from the first floor bedrooms of dwelling 1 occupants would be able to look across into the French doors of the living rooms of No. 80 Pymble Avenue. The third issue was trees in No. 80 along the common boundary adjacent the proposed driveway to lot 1 may well have roots extending under the driveway. Although the driveway was said to be proposed at grade, and not excavated the owners of No. 80 feared their trees, and the privacy and amenity they provided, may be lost.

15 Mr Bartells on his own behalf was concerned about overlooking of his private courtyard and swimming pool from the first floor bedrooms and gallery in dwelling 3.

16 The issues as originally drafted for Appeal 10507 on lot 2 were:

1 Whether the proposal is inconsistent with the requirements of State Environmental Planning Policy No.53, Metropolitan Residential Development, Part 5, Design Requirements. Clauses 32 (b), (c) and (h).
(b) Visual and Acoustic
Privacy No details have been provided as to the location of pool equipment. There is a potential for overlooking from the upper levels of dwellings 3 and 4 on neighbours.
(c) Solar Access and Design for Climate
No thermal assessment has been submitted for the dwellings within the building.
(h) Visual Bulk
The proposed building encroaches on the access corridor of the rear lot by approximately 50Omm.
The side boundary set back to the south-west boundary is unacceptable at 1 metre. It creates an undue imposition of bulk on the neighbouring property. The width of the building is unacceptable contributing to the visual bulk. The setbacks, building width and two storey design all contribute to an unacceptable bulk.
2. The proposal is inconsistent with the requirements of Council's Development Control Code Dual Occupancy with regard to provision of private open space.
The areas provided are inadequate in area and minimum dimension (allowing for the exclusion of the Sydney Turpentine Iron Bark Forest).
3. No management plan has been submitted in respect of the Sydney Turpatine Iron Bark Forest (STIF) to ensure the area remains viable.

17 The issues originally drafted for Appeal 10506 on lot 1 were:

1. Whether the proposal is consistent with the requirements of State Environmental Planning Policy No.53, Metropolitan Residential Development, Part 5, Design Requirements, Clauses 32 (b) visual and acoustic privacy, (c) solar access and design for climate, (d) stormwater and (h) visual bulk.
(b) Visual and Acoustic Privacy
There is potential to overlook adjoining premises, particularly No.88 Pymble Avenue, from the upper levels of the development.
There is no space to provide adequate screen planting to the north- western boundary of the site.
No details have been provided as to the location of pool equipment or potential noise generation of the equipment. There are acoustic concerns related to the rear patio of Dwelling 1.
(c) Solar Access and Design for Climate
Solar access to Dwelling 2 living areas is inadequate.
The location of the dwellings and pools will have an adverse impact on existing trees (particularly TI08, T60, T32) located on the site.
No thermal assessment has been submitted for the proposal.
(d) Stormwater
No independent detention concept has been submitted for the site.
(h) Visual Bulk
The bulk and scale of the development presents an unacceptable visual impact on the dwelling at No.88 Pymble Avenue, because of the inadequate side boundary setbacks, length of the building and excessive built upon area.
The setback between the proposed dwellings on the site is also inadequate.

18 Witnesses for the respondent were:

• Mr G Stewart, town planner for the council
• Mr S Fenn, Arborist for the council
• Mr Bartells, objector and recent purchaser of No. 86 Pymble Avenue
• Ms L Medcraft, objector and recent vendor of No. 86 Pymble Avenue
• Mr Bundy, objector of No. 81 Pymble Avenue

19 Witnesses for the applicant were:

• Mr I Glendinning, town planner
• Ms M Howden, arborist

20 Witnesses for the second respondent were:

• Mr S Craig, objector of No. 80 Pymble Avenue
• Messrs D & B Irwin, objectors of No. 88 Pymble Avenue
  

21 In absentia at the hearing:

• Mr B Brown, town planner of Ingham Consultant, provided reports and attended and signed minutes of the joint experts conference of 7 October 2005 in Exhibit T.
  

22 There also in Exhibit C and G NatHERS Rating Certificates in evidence for each dwelling from ABSA Assessor Certificate #20129 that were not questioned. The part 8 test report in Exhibit U by Mr M Couston of Footprint Green Arborist, Environmental and Horticultural consultants was likewise not questioned.

23 The drainage plans and stormwater detention systems tendered in Exhibit B and F from Mepstead and Associates engineers were also accepted by all parties and incorporated finally in Exhibits R and S.

24 The evidence was in the final plans that dwelling 1 had been changed on its north east corner. There originally was a portico splayed at 450 to the home with grand windows and doors from the family room and a pergola covered terrace on that side. They would look into the backyard of No. 80 including its swim pool. The Craig’s were concerned about privacy and noise of entertainment from the open doors and terrace. The splayed rooms was still shown in Exhibit R, the applicant volunteered to change it.

25 Also there were retaining walls and excavation shown on the common boundary beside dwelling 1 extending a little to the west past the garage. These did not appear to be accounted for in assessing the retention of existing trees near the boundary. The retaining walls were removed and relocated at the house wall. Floor levels and excavation was adjusted also to protect the vegetation.

26 On dwelling 2 it had originally been quite close to the boundary with the Irwin’s at No. 88 and all the mature boundary trees would have to be removed. This would change the aspect from the Irwin house that was oriented north towards the site of dwelling 2. With the boundary trees gone dwelling 2 would stand out quite starkly. It was reduced in length and stepped away from the west boundary by up to 6 m to retain the existing trees and reduce the visual impact. The greater articulation caused by the stepping away considerably softened the otherwise large bulk and reduced the shadow impact on the Irwin’s yard and swim pool.

27 First floor windows had fixed lower panes with frosted glass to 1.6 m above floor level to protect the Irwin’s privacy. In the original scheme there was a loft within the roof of the garage of dwelling 2, which meant the roof, although high, was in a single roof slope facing No. 88’s family and dining rooms.

28 The final amended plan in Exhibit R had made the loft a full storey so that the second floor wall continued over the garage with a roof on top of that. The loft roof was stepped down a little from the main roof of the house. Mr Irwin objected to this saying ‘the reduction’ of bulk due to the shortening of the house was completely lost because the second storey wall now extended 7 m further than previously.

29 Mr Brown, his consultant, had agreed at the joint meeting of experts that overall the bulk of dwelling 2 was acceptable provided the ridge of the loft roof did not exceed RL 114.17 m.

30 The amendment showed the loft would have a full 2.4 m high ceiling and an area 3.3 m x 8.5 m. The original would also have 2.4 m high ceiling because its floor level was set down lower than the amendment, and the internal room size was about 3.3 x 5.5 including the short flight of steps down from the first storey main floor level.

31 The need to raise the loft came about due to the original garage floor being at RL 106.9 and the amended scheme at RL 108.075. This was a result of reducing the amount of excavation by about 1 m to preserve existing trees adjacent the Irwin and Craig boundaries at the top of the driveway. This meant the whole car court would be about at existing ground level rather than excavated. The ground floor level of the houses however stayed about the same as before, in fact 50mm lower, so the height of the house itself was not increased, only the loft on the garage.

32 Having seen the site from the Irwin’s side, their yard varies between 13 m and 17 m width between the Irwin’s house and the side boundary. The upper floor of dwelling 2 is setback 3 m to 7.5 m variable from the side boundary. The loft is at 3 m but that still means a separation distance of 16 m minimum between buildings or almost the width of a street, rising to 24.5 m separation.

33 It seems to me the additional visual impact of the loft part of dwelling 2 is more than compensated by the increased setback of the other parts of the house and the retention of the existing boundary trees.

34 The shadow diagrams showed that in mid winter, before and at 9 am much of the yard between the Irwin house and the side boundary and perhaps a corner of the Irwin’s house receive shade but that quickly reduces. By noon the swim pool is in full sun and only the portion of the yard between the pool and the boundary is in shade. The restriction of the loft height to RL 114.17 required by Mr Brown would actually be lower than shown on the shadow diagram 12D and reduce 9 am shadow impacts still further. Considering the Irwin’s allotment is over 2000 sq m in area, by far the majority of the land retains full sun mid winter and is even less effected at other times of the year.

35 Given the amendments to the proposal and assessing the levels of impact I have formed the opinion dwelling 2 is reasonable and acceptable.

36 I note the applicant has annotated the fencing plan in Exhibit R to show 2.2 m high lapped and capped fencing to the boundaries of the site except the protected forest area. This is in response to the objector’s wishes.

37 In regard to Mr Craig’s concerns I have the opinion from the site visit and the relative levels of buildings discussed that the first floor bedrooms 3 and 4 of dwelling 1 could look over the low roof of the out building on Craig’s land beside dwelling 1 and see into the French doors of the Craig’s living rooms. These particular French doors currently have great privacy as they open onto an inner courtyard enclosed by the out building, the garage and a games room as well as the main house.

38 In spite of my request for the parties to accurately draw a section to demonstrate whether this opinion is correct or not, I have not seen a drawing. Given the existing total privacy of the French doors and the rooms beyond, it is reasonable to require the bedroom and bathroom windows on the north east elevation of dwelling 1 to have fixed bottom sashes and frosted glass up to 1.6 m above the floor.

39 In respect of trees near the driveway I note the joint conference of planners wherein Mr Brown and Mr Stewart reserved their opinion on the tree protection until the council expert had looked at it. Mr Glendinning relied on the arborist report that the existing trees nominated would survive.

40 The second respondent pressed a concern that even construction of the driveway on existing grade must mean some compaction for the pavement even if it is gravel. If this affected the tree roots there could be damage.

41 The latter is of course true, however the joint experts meeting was on 7 October and the final hearing on 10 October. No further evidence was presented so I can only presume the council tree expert is satisfied that appropriate conditions can ensure the protection of the neighbours’ and the proposal’s existing trees that are nominated for retention.

42 Mr Bartells gave evidence on his own behalf about overlooking of his private courtyard and pool from dwelling 3 upper floor bedroom 2,4, the gallery and loft. He sought similar conditions accepted by the applicant for dwelling 2 that all first floor windows facing his courtyard be obscured glass with lower sash fixed. The applicant offered to move the bedroom 2 window around to the north west elevation where a projected dormer window could be designed that would give much better light, amenity and outlook than the highlight windows shown for Bedroom 2. The other windows were conditioned to be high light style also with sills at 1.6 m above the floor. The applicant said that meant obscured glass to the full window is unnecessary. A person’s eye level would not allow them to look down into Mr Bartell’s courtyard.

43 I looked at the south west elevation of dwelling 3.

44 Given the relocation of windows to bedroom 2, I believe the other windows on the south western elevation of dwelling 3 need amendment. Assuming the windows are box framed the join between the top and bottom sashes measures on the plans only at about 1.3 m above the floor. If I accepted the applicants submission a person standing at the windows could see over into Bartells. The window sills are to be raised to 1.6 m above the floor.

45 In regard to the bonds sought by the respondent to ensure completion of landscape conditions, I note the Court has established a principle that there is no power to impose such bonds although there is power to impose performance conditions and I do so as filed by the respondent on 18 October 2005.

46 Overall I have formed the opinion that with conditions requiring the further amendments referred to in this judgment there is no matter sufficient for the refusal of the 2 proposals.

47 The Orders of the Court are:

1. Appeals 10506 and 10507 of 2005 are upheld.

2. Deferred commencement development consents are granted to a detached dual occupancy in appeal 10506 of 2005 and an attached dual occupancy in appeal 10507 of 2005. For appeal 10507 the development to be as shown in drawings in Exhibit S. Drawing numbers:

03a amendment D, 04b amendment D, 05b amendment D, 06b amendment D, 07b amendment D, 8 amendment D,11 amendment D, and the Excavation Plan dated 6 October 2005 and Site Plan amendment F updated to 7 October 2005 and Landscape Plan 9B amendment F updated to 22 August and Fence Details Plan No. 12c as annotated in Exhibit R and the Tree Location Plan dated 6 October 2005 all by Paul Meyer Pty Ltd, and detention tank and drainage plan Nos. 3562DA-2 and 3562 OSD2 by Mepstead Associates Pty Ltd all as hand annotated.

For appeal 10506 the development to be as shown in drawings in Exhibit R being 01 amendment C, 01a amendment C, 02 amendment D, 02a amendment E, 03 amendment C, 03a amendment C, 04 amendment D, 04a amendment E, 05 amendment C, 05a amendment D, 06 amendment D, 06a amendment E, 07 amendment C, 07a amendment D, 12 amendment D, 12b amendment D, Fence Details 12C as hand annotated, Tree Location Plan dated 6 October 2005, 09A amendment G, 10, and Excavation Plan dated 6 October 2005 and Site Plan amendment F dated 7 October 2005 all by Paul Meyer Design Pty Ltd and detention and drainage plan No. 3562DA-1 and 3562 OSD1 by Mepstead Associates Pty Ltd.
All to be as further amended by and built in accordance with the conditions in Annexures A and B hereto.

3. The exhibits are returned to the parties except Exhibits 3, 4, C, G, H, Q, R, S, T, U and V.

4. No orders as to costs.
___________________
K G Hoffman
Commissioner of the Court
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