Land and Environment Court of New South Wales CITATION : Krslovic Homes Pty Ltd v Ku-ring-gai Council [2005] NSWLEC 192 APPLICANT Krslovic Homes Pty Ltd PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 11441 and 11442 of 2004 CORAM: Tuor C. Development Application :- Dual occupancy development KEY ISSUES: whether development contributes to an attractive residential environment with clear character and identity State Environmental Planning Policy No. 53 - Metropolitan Residential Development LEGISLATION CITED: Ku-ring-gai Planning Scheme Ordinance Leonard v Ku-ring-gai Council [2004] NSWLEC 330; CASES CITED: Super Studio v Waverley Council [2004] NSWLEC 91 DATES OF HEARING: 04/04/2005 EX TEMPORE JUDGMENT DATE : 04/06/2005 APPLICANT Mr S Kondilios, solicitor SOLICITORS Maddocks LEGAL REPRESENTATIVES: RESPONDENT Mr R K Graham, solicitor SOLICITORS Abbott Tout JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 6 April 2005 11441 and 11442 of 2004 Krslovic Homes Pty Ltd v Ku-ring-gai Council JUDGMENT 1 These are two appeals against the refusal by Ku-ring-gai Council (council) of two development application at Lots 11 and 12, 30 Warrangi Street, Turramurra 9 (the site). 2 Appeal No. 11441 of 2004 relates to development application 359/04 at Lot 11. 3 Appeal No. 11442 of 2004 relates to development application 360/04 at Lot 12. 4 Both applications are to construct a detached dual occupancy development in accordance with the provisions of State Environmental Planning Policy No. 53 - Metropolitan Residential Development (SEPP53). 5 Vehicle access to each dwelling is by a central driveway over which there would be reciprocal rights of carriageway. The entry to each dwelling is off this driveway. The sites are zoned 2(c) Residential under Ku-ring-gai Planning Scheme Ordinance (KPSO). Dual occupancy development is not permitted within this zone. 6 The site, its context and history of the application are outlined in the Statement of Basic Facts. Both sites are rectangular in shape with an area of about 1044 sq m, a frontage of about 19.8 m and a depth of about 52.7 m. 7 The Court undertook a view of the site and heard from a number of residents. The main concerns of the residents can be summarised as the proposal is an over-development of the site, which is uncharacteristic of the area. The buildings are too big and with too little landscaping that will result in an unacceptable impact on the street and the amenity of adjoining residents in terms of visual and aural privacy and overshadowing. 8 Some residents were also concerned about the traffic and drainage impacts of the proposal. The issues raised by council reflected those raised by the residents with the exception of traffic, which council found to be acceptable, and drainage, which council considered could be dealt with by a condition that required further stormwater plans to be submitted if the applications were to be approved. 9 Ms D Laidlaw, the Court appointed expert, and Mr I Glendenning, for the applicant, provided planning advice. Ms Laidlaw assessed the issues and recommended a number of changes which were incorporated into conditions that the applicant has accepted. In her opinion, subject to these changes, the application would have an acceptable impact and would meet the requirements of SEPP 53. 10 While I accept Ms Laidlaw's changes would improve the development I do not consider them to be sufficient to warrant approval of the application. The application meets the numerical requirements of SEPP 53, each site having an area greater than 600 sq m and a floor space ratio (FSR) less than 0.5:1. 11 The key question before the Court is whether the applications meet the qualitative requirements of the policy, in particular, whether the applications meet the aim of cl 3(1)(d) to be of "good design". The other aims of the policy are met. 12 The objectives for dual occupancy in cl 15 of SEPP 53 are: (a) To create opportunities for two dwellings to be developed on a single allotment, and (b) Through the other provisions of this policy, to ensure that dual occupancy development is: (i) designed and assessed with the full understanding of the opportunities and constraints of each site, and (ii) designed and assessed having adequate regard for the design principles contained in Part 5 . 13 The design requirements for dual occupancy development as set out in Part 5 cl 32 includes the following requirement: Consent must not be granted for development to which this Part applies unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the following principles. (a) Streetscape: The proposed development should: (i) contribute to an attractive residential environment with clear character and identity. 14 Clause 32 also includes requirements relating to visual and acoustic privacy, solar access and design for climate, stormwater and visual bulk. 15 In relation to streetscape, the clear character and identity of the area is one of buildings in landscaped settings, set back from the street with their entries facing the street and their main private open space to the rear. The buildings are of different sizes and styles with some very large houses set on large allotments and some battleaxe development, generally not visible from the street except for the access handle. 16 Ms Laidlaw's opinion was that SEPP 53 envisages a type of development that is more intensive than single dwellings on single lots and therefore would be different to existing development in the street. 17 I accept that SEPP 53 permits development that is "different" to what exists but the question is the extent of the difference that can occur whilst still contributing to a clear character and identity. In answering this question, the principle is that development does not need to be the same as existing development but the key elements of the character of the area need to be maintained. This reflects the opinion expressed by Cowdroy J in Leonard v Ku-ring-gai Council [2004] NSWLEC 330 where his Honour stated: that the test in SEPP 53 is not whether the development is to be the same as that which currently exists. The SEPP contemplates a different form of development but that form must contribute not only to an attractive residential environment but also to one with clear character and identity. To achieve the objective the new development must respond to those features of the existing area that provide the clear character and identity. 18 In this case, I find that the key elements of the character of the area are not being maintained and that the development therefore does not contribute to an attractive residential environment with clear character and identity for the following reasons. 19 The space between dwellings one and two on each lot is between 2.2m and 2.5 m which means that the dwellings, when viewed from the street, will appear as one mass lining the central driveway. 20 The dwellings on each lot are separated by the driveway and are a minimum of 7 m apart. They are set back about 0.8 m from the driveway. Whilst this bulk will be broken down by setbacks and variations in the building façade and will be softened by landscaping, the length of two dwellings facing two other dwellings across a driveway will not contribute to the character and identity of the area. 21 Ms Laidlaw addressed this issue by requiring greater landscaping at the front, side and end of the driveway. While this will be of assistance I do not accept that it would be sufficient, particularly as there is limited opportunity for any substantial landscaping along the driveway other than shrubs and a small feature tree between dwellings one and two on each lot. 22 I agree that the arrangements of four dwellings and shared accessway reduces the impact of having multiple driveways on the street but has the disadvantage of exposing the four dwellings to the street. This could be ameliorated if there were greater space between dwellings one and two on each lot and greater setback of the dwellings from the driveway. 23 The front setback of dwelling one on Lot 12 is about 11 m which is slightly less than the setback of the adjoining property at No. 32 with a setback of about twelve metres. 24 Dwelling one on Lot 11 has a similar setback but is separated from the adjoining house at No. 26 by a battleaxe driveway. The setback distance of both these dwellings would be consistent with the street as there is a degree of variation in the setbacks along the street. However, the use of the setback area as open space is not consistent with other houses in the street. 25 In the case of dwelling one on Lot 11, the open space in the setback area is excavated and the detention tank occupies a large part of this area. A condition requires that the size of the tank be reduced through greater collection of and reuse of water on site but the tank will still occupy part of the area. 26 The final appearance of the setback, the dwellings and the views along the driveway is difficult to estimate as no elevation was provided which showed these elements in combination or their relationship to the street. 27 Ms Laidlaw stated that: "the use of front gardens as principal private open space is not an optimum arrangement but one that is not uncommon in medium density development. Providing that the requisite level of privacy is achieved by landscaping in character with the locality, rather than by high fences". 28 I do not agree that the use of these areas for private open space contributes to the area. The primary purpose of front setbacks in an area such as Turramurra is as an extension to the public domain to provide space and separation between the often large houses and the street and to enable the area to be landscaped often with significant canopy trees that contribute to the streetscape and soften the built form. Even without landscaping the space is sufficient to mitigate the impacts of the bulk of these buildings upon the street. 29 If the area is used as private open space it is an extension of the private area not the public, and the need for privacy will require screening and fencing along the street. A large part of the area will also be paved or grassed to facilitate its use as private open space and the planting of large canopy trees may conflict with the use of the space. 30 While the use of part of the setbacks as open space may be appropriate for medium density development or in other areas I do not accept that it contributes to the consistent character of this area or that dual occupancy development is medium density development. 31 The appearance of the dwellings, particularly dwelling one of Lot 12, do not address the street, having their entries off the central driveway. The dwellings have different floor plates and designs which Ms Laidlaw described as being: complementary but different is a good feature of the development, because it reinforces a 'single dwelling' rather than a 'multi-unit' appearance. 32 I disagree with the statement, as there is sufficient similarity in the designs, materials, roof forms, fenestration etc and shared use of spaces that the dwellings will appear as a single development more akin to multi-unit development than single dwelling houses. 33 The extent to which the dwellings will appear as continuous along the north and south boundaries is difficult to estimate from the information provided. Ms Laidlaw stated that: the rear dwellings would appear as background development. The appearance of the rear dwellings would clearly signify that this development was "different' and more intensive to single homes on single lots. However, that is in principle what SEPP 53 allows. 34 Due to the greater setback of adjoining houses and the battleaxe driveway, the two front dwellings will be clearly visible along the north and south boundaries. Dwelling one on Lot 11 is a large house and council was concerned about the bulk of the house and the length of its southern wall. Ms Laidlaw recommended that the setback of the wall from the bay be increased by 500 mm to one metre to improve the articulation of the façade and enable greater landscaping. 35 While I do not consider that the amendment will do much to change the overall perception of bulk, dwelling one is not uncharacteristic of the size of other buildings in the area. Individually the size of all the proposed houses are not dissimilar or even in some cases smaller than other houses in the area. However, the arrangement of the houses on the site with access off a central driveway, the separation of the houses from each other and the extent of space around them is different. In this area where there are large houses they are on large allotments. To contribute to the character this relativity should be maintained in that as lot sizes are reduced house sizes should also reduce. 36 I note that the dwellings comply with the FSR of 0.5:1 and as a guide have a built upon area in the order of 47%. However, these figures correctly include the shared right of way and the front setback area, which represent a substantial part of each allotment. This results in the remaining area of the site, with the exception of the private northwest courtyard of dwelling two of Lot 1, being essentially setback areas with widths averaging about two metres. This space is insufficient to maintain the relativity of built form to open space characteristic of the area and for the dwellings to read as buildings in landscape settings. 37 I note that there are conditions which require canopy trees to be planted on each allotment. The ability of this to be achieved is questioned with the constraints imposed by the size of the spaces, proximity to buildings, retaining walls, detention tanks and canopy trees on other sites. Ms Laidlaw recognised that large canopy trees would be more suited to the front and rear setback areas. However, the use of these areas as open space may impose conflicts on providing canopy trees that would contribute to an attractive residential environment that are characteristic of the area. 38 A further comment on landscaping is that parts of the development rely on landscaping to achieve acceptable privacy and bulk, such as the driveway appearance discussed earlier and the relationship between No. 28 and No. 32. Both these properties are at a higher level than the subject development and without landscaping there would be direct overlooking from their private open space areas into the private open space of dwelling two on Lots 11 and 12. 39 Senior Commissioner Roseth in Super Studio v Waverley Council [2004] NSWLEC 91 enunciated the principle that where proposed landscaping is the main safeguard against overlooking it should be given minor weight. This principle can also be expanded to landscaping and its use to screen or mitigate bulk impacts of a proposal. The built form should be acceptable without landscaping. This will be achieved by factors such as the size and separation of development in relation to other buildings. The space around buildings is then something that can be landscaped to soften the development but the space is the important factor, not the landscaping. 40 While individually each of the differences in the key elements of the existing character of the area may not of themselves warrant refusal, in combination, I find that the proposal does not contribute to an attractive residential environment with clear character and identity and on this basis must fail. 41 In relation to the other issues raised by council, I accept Ms Laidlaw's evidence that the proposal will have an acceptable overshadowing impact on adjoining properties. However, The solar access to dwelling two of Lot 12, even with the increased setback, will not be of an acceptable level. While this is only one dwelling out of four, on large sites such as these I do not accept that reasonable solar access cannot be achieved to this dwelling. The design of the outdoor area with a retaining wall and excavation below ground is also poor and unnecessary. 42 The position of the shared driveway whilst it achieves benefits of limiting hard surfaces and the number of driveways onto the street, also prevents the dwellings of Lot 11 from maximising the opportunity for northern solar access to living areas, particularly dwelling one where the rooms to the north are garages, a study, and an entry porch with only a 600 mm wide window to the living area that faces north. While the living areas will comply with the solar access requirements through eastern sunlight it is an example of the development not involving site planning, dwelling design and landscaping that reduces energy use which is a consideration under cl 32(c)(2) of SEPP 53. 43 There are other examples of the lack of planning and design response which individually would not warrant a refusal but in combination are of concern. 44 For the above reasons I find that the proposals do not achieve the aim of SEPP 53 to be of "good design". I recognise that the sites are suitable for dual occupancy development and that the other aims of SEPP 53 are satisfied but not that adequate regard has been given to the streetscape principles in cl 32 of SEPP 53 and that development consent cannot be granted and the appeal therefore fails. 45 The orders of the Court are: 1. The appeals are dismissed. 2. The development applications 359/04 and 360/04 for detached dual occupancy developments at lots 11 and 12 Warrangi Street, Turramurra, are refused. 3. The exhibits may be returned. 4. No order as to costs. ____________________ Annelise Tuor Commissioner of the Court rjs/ljr DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.