Debtap Pty Ltd v Ku-ring-gai Municipal Council [2004] NSWLEC 229

Land and Environment Court of New South Wales

CITATION : Debtap Pty Ltd v Ku-ring-gai Municipal Council [2004] NSWLEC 229 APPLICANT Debtap Pty Ltd PARTIES : RESPONDENT Ku-rin-gai Municipal Council FILE NUMBER(S) : 11516 of 2003 CORAM: Watts C KEY ISSUES: Development Application :- Conditions of consent Ku-ring-gai Planning Scheme Ordinance, (KPSO); LEGISLATION CITED: State Environmental Planning Policy No 5, Housing for Older People or People with a Disability, (SEPP5); Development Control Code for SEPP5 development, (Code); Environmental Planning and Assessment Act 1979, ss79C and 97. CASES CITED: DATES OF HEARING: 11/05/2004 EX TEMPORE 05/11/2004 JUDGMENT DATE :

APPLICANT Mr J Maston, barrister instructed by Mr M A McKelvey, solicitor SOLICITOR Michael A McKelvey & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr R Fox, solicitor SOLICITOR Deacons

JUDGMENT: Appeal No: 11516 of 2003 IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11516 of 2003 Watts C 11 May 2004 Debtap Pty Ltd Applicant

v Ku-ring-gai Council Respondent 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 Municipal Council (the council) of a development application to demolish two attached dual occupancy dwellings and to erect four residential dwellings for older people or people with a disability at Lot 746, DP 752001, being No 64 Wellington Road, East Lindfield. 2 I have concluded that the consent orders may be granted after the application has been considered under s 79C of the Environmental Planning and Assessment Act 1979 . The land 3 The land is situated on the northeastern side of Wellington Road on the corner of Coopernook Avenue. It is generally regular in shape with a frontage to Wellington Road of 16.155m, a side boundary to Coopernook Avenue of 40.485m with a corner splay of 4.310m and an area of 838.10m2. The rear boundary to No 6 Coopernook Avenue is 19.2m and the northeastern boundary to No 66 Wellington Road is 43.890m. 4 A detached dual occupancy development comprising a 1960's texture brick dwelling and later extensions and a two-bedroom dwelling constructed in the early 1980's are erected on the land. 5 The land slopes down from the rear northwest to front southeast about 4m over 44m or a grade of 1:11. The frontage falls from the southwest to the northeast less than 1m over a distance of about 19m. 6 Four pine trees, two in the front and two in the Coopernook Avenue side area adjacent to the existing front building grace the land. 7 Wellington Road in this location is the main collector road for this section of the East Lindfield peninsular area. Wellington Road links the existing aged persons development at Ulmarra Place, the recreation areas of East Lindfield park and Wellington Road oval and the bowling club to the East Lindfield Shopping Centre and community centre then to Tryon Road, the East Lindfield School and the Lindfield Shopping Centre and railway. 8 The area is predominantly residential in character comprising housing styles from many eras, mainly post war and includes many new developments of large two-storey buildings representing late 20th century and early 21st century building forms. 9 Bus stops are located diagonally opposite the land outside No 63 Wellington Road and outside the subject property for the government bus service 207 and the Shorelink private service No 558 linking the aged persons centre in Ulmarra Place to the centres of Lindfield, Roseville, Chatswood and the City. 10 The East Lindfield Shopping Centre, community centre and doctor are within walking distance of the subject land. Relevant planning controls Ku-ring-gai Planning Scheme Ordinance, (KPSO) 11 The land is zoned Residential 2(a) under the KPSO (as amended) and the proposed development is not permissible except under SEPP5. State Environmental Planning Policy No 5, Housing for Older People or People with a Disability, (SEPP5) 12 SEPP 5 applies to the land and the proposed use is permissible with consent. Development Control Code for SEPP5 development, (Code) 13 The Council's Code provides planning detail for considering SEPP5 development. The proposal and its history 14 Development application No 1551/ 02 was lodged with the respondent council on 6 November 2002 to demolish the existing dual occupancy development and to erect a four-unit SEPP5 development. 15 Contained within the development are 2 x 2 bedroom dwellings and 2 x 3 bedroom dwellings. The two bedroom dwellings are on a single living level facing Wellington Road while the three bedroom dwellings have one bedroom on the ground floor and two bedrooms within the upstairs roof space. 16 Six (6) basement car spaces are proposed with access to the ground floor by lift and stairs. Five (5) car parking spaces are proposed for the residents and one for visitors or service personnel. All vehicular access is via the existing site access to Wellington Road. 17 Pedestrian access to and from the adjoining bus stop in Coopernook Avenue is proposed. 18 The proposal is illustrated on the plans prepared by Keers & Banks Architects Pty Ltd and the design has evolved from site analysis, and requirements of the Council's Code. Notification 19 The application was notified to nearby owners and occupants and seventeen (17) objections and 120 signatures on a petition. Concerns related in particular to the bulk of the building. The council's decision 20 When the appeal was lodged the council had not determined the application but by notice dated 30 April 2004 the council approved the application with conditions. Some of those conditions were in dispute. The hearing 21 The appeal was filed on 11 December 2003. 22 At the hearing the court heard evidence on behalf of the respondent council from: · Mr D A Burton, resident of No 63 Wellington Road; who expressed concern about the bulk of the proposed building in this location and a number of other issues. The issues 23 On 9 February 2004 the council filed a statement of issues in relation to the deemed refusal: 1. Whether the site analysis prepared contains adequate and/or accurate information to satisfy Clause 24 of SEPP5. 2. Whether the proposed development complies with Clause 25 of SEPP5 in particular whether the proposal: i. contributes to an attractive residential environment with clear character and identity, ii. considers the visual and acoustic privacy of neighbours and residents in the vicinity; iii. maintains reasonable neighbour amenity and appropriate residential character by providing building setbacks that progressively increase as wall heights increase to reduce bulk and overshadowing; iv. maintains reasonable neighbour amenity and appropriate residential character by using building form and siting that relates to the site's land form; v. proposes sufficient landscaping in sympathy with other planting in the streetscape; vi. embodies appropriate site planning or the use of screening devices and landscaping; and vii. involves site planning, dwelling design and landscaping that reduces energy use and makes the best practicable use of natural ventilation solar heating and lighting by locating the windows of living and dining areas in a northerly direction. 3. Whether the excavation for the car park relative to the north-eastern boundary is acceptable. 4. Whether the setbacks on the north-eastern boundary will result in sufficient consolidated deep soil landscaped area to address the visual intrusion and bulk of the proposal. 5. Whether the landscaped area is adequate due to its slope and fragmented nature as a result of the access ramp proposed on the Wellington Road façade. 6. Whether the proposed development will have an adverse impact upon the amenity of adjoining properties and therefore is inconsistent with Section 79C of the Environmental Planning and Assessment Act 1979 (NSW)("EPAA"). 7. Whether the excavation across the site to achieve the required levels (for access purposes) combined with the bulk and scale of the proposal constitutes an insensitive overdevelopment of the site. In particular whether it is an appropriate design response to the site-specific constraints. 8. Whether the proposal will be visually intrusive when viewed from both Coopernook Street and Wellington Road. 9. Whether the Proposed development is consistent with the Ku-ring-gai Planning Scheme Ordinance ("KPSO") Schedule 9 "Aims and Objectives of Residential Zones" in that it does not improve the existing amenity and environmental character of residential zones. In particular: i. whether the proposed development would maintain the existing amenity and environmental character of the residential zone (Clause 1(a) of Schedule 9) having regard to the impact on vegetation on the site; and ii. whether the proposed development would be compatible with the environmental character of the locality and would have a sympathetic or harmonious relationship with adjoining properties (clause 1(b) of schedule 9 KPSO). 10. Issues raised by the objectors.