Urban Peninsula Pty Limited v Ku-ring-gai Council [2006] NSWLEC 196

Land and Environment Court of New South Wales

CITATION : Urban Peninsula Pty Limited v Ku-ring-gai Council [2006] NSWLEC 196 This decision has been amended. Please see the end of the judgment for a list of the amendments.

APPLICANT: PARTIES : Urban Peninsula Pty Limited RESPONDENT: Ku-ring-gai Council

FILE NUMBER(S) : 10110 of 2005

CORAM: Watts C at 1

KEY ISSUES: Development Application :- Overshadowing of 'Fernleigh Gardens'

Ku-ring-gai Planning Scheme Ordinance as amended by LEP194, (KPSO) LEGISLATION CITED: State Environmental Planning Policy No 65 - Design Quality Of Residential Development, (SEPP65) Environmental Planning and Assessment Act 1979, ss 79C and 97

CASES CITED: Allan Robert Cooley and Janet Louise Patterson v City of Sydney Council [2005] NSWLEC 55

DATES OF HEARING: 07/12/2005 and 08/12/2005; Mention 02/02/2006; 15/02/2006; 29/03/2006

DATE OF JUDGMENT: 04/21/2006

APPLICANT: Mr D Baird, solicitor with Ms J Studdert, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Maddocks Lawyers RESPONDENT: Mr P Rigg, solicitor SOLICITORS: Deacons

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

21 April 2006

10110 of 2005 - Urban Peninsula Pty Limited v Ku-ring-gai Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Ku-ring-gai Council (the council) of a development application to demolish existing dwellings and associated structures and to erect a five-storey residential flat building providing thirty-one (31) dwellings [originally 35] and forty-nine (49) [originally 66] car parking spaces in three (3) basement levels at Lot C, DP 377347 (No 2 Buckingham Road); Lot B, DP 377347 (No 4 Buckingham Road); Lot F, DP 378495 (No 6 Buckingham Road), being Nos 2 to 6 Buckingham Road, Killara. 2 I visited the land in company with the parties on the morning of the first day of proceedings. Local residents gave evidence. 3 I have concluded that the application as amended when considered under s 79C of the Environmental Planning and Assessment Act 1979 should succeed and approval is granted subject to conditions. I am satisfied that the only contested issue that remained was that of overshadowing of No 568 Pacific Highway, being 'Fernleigh Gardens' (originally known as 'Fernleigh') and I am satisfied that issue is not a reason to refuse the application. The land 4 The land is situated on the southern corner of Buckingham Road and the Pacific Highway. The land is triangular in plan shape with a northern frontage of 79.5m to Buckingham Road, a cranked southern boundary of about 86m, a western boundary of around 45.7m and a boundary to the Pacific Highway 14.5m, and an area of 2,745m2. 5 The land slopes from the northern boundary down to the southern site boundary at a grade of around 24%. The land falls steeply from Buckingham Road where its topography was modified to accommodate the existing structures. 6 On each of the three allotments is erected a two-storey dwelling, two of these have in-ground pools. 7 Buckingham Road is wide when compared to other roads intersecting with the Pacific Highway. The distance between the front alignment of the land to the kerb line of Pacific Highway is 3.4 metres and in Buckingham Road the council's verge is 6.2m. This verge supports some significant vegetation. 8 The area is characterised by dwellings of various styles with established vegetation and gardens. Along the Pacific Highway there are some residential flat buildings. 9 On the northern side of Buckingham Road and across Pacific Highway to the east, there are single dwelling houses. 10 To the south of the land at No 568 Pacific Highway there is a residential flat building known as 'Fernleigh Gardens' and a double-storey dwelling house on its southern boundary. Killara Golf Course is located beyond those properties further to the south. 11 On the western boundary of the land a driveway gives access to No 6A Buckingham Road. Relevant planning controls Ku-ring-gai Planning Scheme Ordinance as amended by LEP194, (KPSO) 12 Under the provisions of the KPSO, as amended by Local Environmental Plan 194, (LEP194), the land is zoned residential 2(d3) and the proposal is permissible with consent as multi-unit housing or a residential flat building. On 28 May 2004, the land was rezoned for multi-unit housing under LEP194, which amended the KPSO. 13 Under cl 25C(1) of the KPSO, the aims are: (a) to encourage the protection and enhancement of the environmental and heritage qualities of Ku-ring-gai, (b) to encourage our orderly development of land and resources in Ku-ring-gai, (c) to encourage environmental, economic, social and physical well-being so that Ku-ring-gai continues to be an enjoyable place to live in harmony with the environment. 14 Under cl 25C of the KPSO, the objectives are: (a) to provide the increased housing choice, (b) to encourage the protection of the natural environment of Ku-ring-gai, including biodiversity, the general tree canopy, natural watercourses, natural soil profiles, groundwater and topography and to reduce and mitigate adverse impacts of development on natural areas, (c) to achieve high-quality urban design and an architectural design, (d) to achieve development of Ku-ring-gai with regard to the principles of ecologically sustainable development, (e) to ensure the development for the purpose of residential flat buildings on land within the zoned No 2(d3) has regard to its impact on any heritage items in the vicinity of the development, (f) to encourage use of public transport, walking and cycling, (g) to achieve a higher level a residential amenity in building design from the occupants of buildings through sun access, acoustic control, privacy protection, natural ventilation, passive security design, outdoor living, landscape design, indoor amenity and storage provision. 15 Under cl 25D(1) of the KPSO - Heads of consideration for consent authority. Consent must not be granted to any development of land to which this part applies unless the consent authority has regard to: (a) the objectives for residential zones set out in this clause, and (b) if the application is for consent for a residential flat building in zone No 2(d3), a statement describing the extent, if any, to which carrying out the proposed development will affect the heritage significance of any heritage item in the vicinity of the subject land. 16 The objectives for residential zones under cl 25D(2) of the KPSO are: (a) to provide rear setbacks that ensure rear gardens are adjacent to rear gardens of other properties and that sufficient ground are is available for tall tree planting, consistent with the objectives of this part, (b) to encourage the protection of existing trees within setback areas and to encourage the provision of sufficient viable deep soil landscaping and tall trees in the near and front gardens where new development is carried out, (c) to provide side setbacks that enable effective landscaping, tree planting between buildings, separation of buildings for privacy and views from the street to rear landscaping, (d) to minimise adverse impacts of car parking on landscape character, (e) to provide built upon area controls to protect the tree canopy of Ku-ring-gai and to maintain particular the provision of viable deep soil landscaping in order to maintain and improve the tree canopy in a sustainable way, so that the canopy will be in scale with the built form, (f) to encourage the planting of tree species that are endemic to Ku-ring-gai, (g) to require on-site detention for stormwater for new development and refurbishment of existing housing so as to avoid excessive runoff and adverse impacts on natural watercourses, and to preserve the long-term health of tall trees and promote natural absorption, (h) to encourage water sensitive urban design, (i) to encourage the protection and enhancement of open watercourses, (j) to have regard for bushfire hazard, (k) to ensure sunlight access to neighbours and to provide sunlight access to occupants of the new buildings, (l) to encourage safety and security of the public domain by facing windows and building entries to the street, where appropriate, and windows to open spaces in order to maximise casual surveillance opportunities, (m) to encourage safety and security of private development by requiring a high standard of building design and landscape design, (n) to encourage the provision of housing the seniors and people with disabilities by prescribing appropriate standards the new development, (o) to encourage the protection of the environmental qualities of the area by limiting the range of permissible residential users and to allow a limited range of compatible non-residential uses in certain zones, (p) to allow attached dual occupancies only on compliance with defined criteria and only where they are consistent with or enhance the character of the streetscape and its setting, (q) to provide for waste management (including provision for garbage storage and collection) consistent with the objectives of this part, (r) to ensure that adequate provision for storage is made for residential development, (s) to encourage the retention and expansion of bicycle infrastructure. 17 Under Division 5, cl 25I(1) of the KPSO, further controls are specified. Before granting consent to development of the purpose of multi unit housing on land to which this part applies, the consent authority must take into account the following: (a) the desirability to provide a high proportion of deep soil landscaping to the site area, (b) the impact of any overshadowing and any loss of privacy and loss of the outlook likely to be caused by the proposed development, (c) the desirability to achieve an appropriate separation between buildings and side boundaries and landscaped corridors along rear fence lines, (d) the environmental features that are characteristic of the zoned in which the site is situated by requiring sufficient space on-site for effective landscaping, (e) the desirability of adequate landscaping so that the built form does not dominate the landscape, (f) how the principles of water cycle management can be applied to limit the impacts of runoff and stormwater flows offsite. 18 There are no specific standards under the KPSO applying to solar access and the objectives in bold above are to be met. 19 Height is also in issue and under s 25I(8) of the KPSO, the maximum number of storeys and ceiling height, subject to subclause 5 and clause 25K, buildings on land to which this part applies are not to have: (a) more stories than the maximum number of stories specified in Column 2 of the Table to this subclause, (b) or given the number of storeys in the building, a perimeter ceiling height greater than that specified in Column 3 of that Table.