Land and Environment Court of New South Wales CITATION : Ben-Menashe v Ku-ring-gai C [2005] NSWLEC 172 APPLICANT I & L Ben-Menashe PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 10009 of 2005 CORAM: Hussey C Development Application :- Attached dual occupancy - Bulk and Scale - Amenity impacts - Traffic/parking. KEY ISSUES: Environmental Planning and Assessment Act 1979 LEGISLATION CITED: SEPP53 DATES OF HEARING: 13/04/05 EX TEMPORE JUDGMENT DATE : 04/13/2005 APPLICANT Mr S. Kondilios, solicitor of Maddocks LEGAL REPRESENTATIVES: RESPONDENT Mr R. Graham, solicitor of Abbott Tout JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 13 April 2005 10009 of 2005 I & L Ben-Menashe v Ku-ring-gai Council JUDGMENT 1 This appeal concerns council's refusal of a development application for an attached dual occupancy at No. 41 Kissing Point Road, Turramurra. The proposal's for a two-storey dwelling containing Unit A having a two bedrooms and study and Unit B having three bedrooms and a study. 2 The full details of the proposal and relative planning framework are in the Statement of Basic Facts, which I adopt and that includes details of the site area, which is 706 sq m. For the appeal the parties have agreed to the appointment of Ms Deborah Laidlaw as the Court appointed expert for planning and she prepared a detaied report to address the issues and the matters raised by the objectors. 3 I note this morning, that in response to her comments the applicant has amended the plans by lowering the proposal in the order of 500 mm – 1 m (approximately) along the roofline. 4 Significantly in this case, SEPP 53 is the prevailing control, which allows some changes and increase in areas of basic compliance, over that which is specified in other council controls. But it specifies numeric controls and also qualitative assessments that have to be made. 5 In summary the issues concern the: 1. bulk and scale of the proposal and its impact on the streetscape, 2. amenity impacts on neighbours, 3. traffic/parking. 6 With respect to items 2 and 3, I accept Ms Laidlaw's opinion and based on my observations on the view that in this residential context, the proposal does not create such amenity impacts on the neighbouring properties to warrant rejection, even though it will introduce some changes involving some loss of outlook and some shadowing of adjoining properties. But I do not consider this is sufficient to warrant rejection of the proposal and this conclusion is in line with Ms Laidlaw's opinion. 7 I also note that the proposal complies with the SEPP 53 parking provisions and even though there may be some street parking problems at times, I am satisfied that the parking provisions of the proposal are acceptable, based on SEPP 53 requirements. 8 However, the threshold issue then is the streetscape impact and this comes into play by the provisions of cl 32 of SEPP 53, which provides that development consent must not be granted for development to which this part applies unless the consent authority is satisfied that the proposal 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 and, … 9 In this regard I note Mr Graham's submissions regarding the effective area of the lot due to some limitations and reduction of effective area due to the right of way and the drainage easement. Nevertheless, Ms Laidlaw fairly acknowledges the provisions of SEPP 53 and she says: "Nonetheless since SEPP 53 permits an attached dual occupancy development on sites as small as 400 sq m and does not, in stipulating that standard, differentiate between local government areas of very different environmental and streetscape qualities, it is necessary to have regard to 'first principles' and to make a merit assessment of the development and how it 'fit's in with the streetscape and local character. In this regard, as I have set out above, I believe the combined effect of the two-storey form and the proximity of the development to the street is not in character and to that extent, the proposal is not consistent with key aims and objectives of SEPP 53". 10 She does not consider that this two-storey building satisfactorily fits into this neighbourhood, which is characterised by single storey cottages - particularly on the northern side of Kissing Point Road, in garden settings and generally on large size blocks. In this regard she also refers to the provisions of cl. 32(h) which requires assessment of Visual Bulk so that: 'The proposed development should, where practicable, maintain reasonable neighbour amenity and appropriate residential character by: (a) providing building setbacks that progressively increase as wall heights increase to reduce bulk and overshadowing, and (b) using building form and siting that relates to the site's land form, and (c) adopting building heights at the street frontage that are compatible in scale with adjacent development, and (d) considering, where buildings are located on the boundary, the impact of the boundary walls on neighbours.' 11 Ms Laidlaw says that: The proposal would result in a two-storey form being brought much closer to the street than is the norm, and the combined effect of the height and scale of the proposal and its setback to Kissing Point Road lead me to a conclusion that the proposal is not consistent with, or complementary to the underlying character of the surrounding locality. To that extent I believe the proposal is not consistent with the aims and objectives of SEPP 53 to be of 'good design' and to 'contribute to an attractive residential environment with clear character and identity'. Likewise, the relatively small size of the site (ie relative to the norm in the locality) and the constraints it is subject to, including the need to accommodate the functional requirements of the two new dwellings for access and open space, lead to limitations in terms of maintaining the open landscaped character that is characteristic of this area. It will be noted, however, that there are obvious difficulties in reconciling the need to maintain this type of character with a planning instrument that permits two houses on sites as small as 400 sq m. 12 In my assessment, I note the proposals numerical compliance but I also consider that this section of Kissing Point Road is characterised by the predominately single storey dwellings in the landscaped settings, which appear to be on generally larger blocks, somewhere in the order of 900 sq m. That is considerably larger than the 706 sq m available here. While I accept the two-storey dwellings could be located on the site, nevertheless, when this is done via SEPP 53, there are restrictions in terms of the qualitative assessments that have been made and a proposal has to make presumably a positive contribution to those characteristics. 13 In this case I have the benefit of Ms Laidlaw's opinion and she has particular expertise in this field and I am persuaded to accept her opinion, that this proposal does not make a positive contribution to what I consider relatively low scale somewhat recessive nature of the surrounding residential dwellings. This proposal has in my opinion, a much greater presence and therefore, it doesn't adequately comply with the provisions of cl 32. 14 But apart from this, I note the applicant's consideration to another option which provides for the upper level to be further setback and some reduction in the floor area and I consider that option may have some merit, but it is a separate application which I do not consider appropriate to deal by way of condition in this application. As it would be a different application, its merits would need to be fully assessed. 15 For these reasons, I rely on the opinion of Ms Laidlaw that this application doesn't comply satisfactorily with the provisions of cl 32 of SEPP 53 and therefore fails. 16 The Orders of the Court are: 1. The appeal is dismissed. 2. Development consent for DA 1268/04 for demolition of an existing house and erection of an attached two-storey dual occupancy development at No. 41 Kissing Point Road, Turramurra, is refused. 3. The exhibits may be returned except Exhibits 2 and 4. ________________________ R Hussey, Commissioner of the Court 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.