Land and Environment Court of New South Wales CITATION : Abbasi & Zadeh v Ku-ring-gai Council [2005] NSWLEC 452 1ST APPLICANT Akram Abbasi 2ND APPLICANT Bahman Daei Zadeh PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 10419 of 2005 CORAM: Hussey C KEY ISSUES: Development Application :- Detached two-storey dual occupancy dwelling - streetscape - visual and acoustic privacy impacts - solar access - building setbacks internally and setback to boundary - crime prevention - accessibility. Environmental Planning and Assessment Act 1979 Ku-ring-gai Planning Scheme Ordinance SEPP53 LEGISLATION CITED: SEPP 55 DCP 40 Ku-ring-gai Dual Occupancy Development Control Code. DATES OF HEARING: 21/07/2005 EX TEMPORE JUDGMENT DATE : 07/21/2005 APPLICANT Mr J. Hones, solicitor of Hones Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr Patterson, solicitor of Wilshire Webb JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 21 July 2005 10419 of 2005 Akram Abbasi and Bahman Daei Zadeh v Ku-ring-gai Council JUDGMENT Background 1 The appeal is against council's refusal of a Development Application for a detached, two-storey dual occupancy dwelling at No. 7 Chauvel Close, Wahroonga. 2 For the appeal the following issues were identified: + Streetscape; in terms of the proposals inability to contribute to an attractive residential environment, particularly due to its two-storey form in the backyard of the site. + Visual and Acoustic Privacy impacts on neighbouring properties + Solar Access impacts + Building Setbacks; internally and setback to boundary + Crime prevention + Accessibility + Resident Objections. 3 For the appeal, the parties agreed for the matter to be determined by way of an On-site Hearing. The site 4 The subject allotment is described as Lot 9 in DP 30054 (No. 7) Chauvel Close, Wahroonga. The rectangular shaped site is located on the northern side of Chauvel Close, which is a quiet cul-de-sac. The land has a 3 m slope from the rear boundary to the street and has a total area of 929 sq m. 5 The site is occupied by a large, recently constructed rendered/brick veneer dwelling with a free standing garage outbuilding located to the rear, adjacent to the western boundary. Vehicular access to this building is via an existing pebble driveway. 6 The site is adjoined to the north by large property currently under construction for a recently approved SEPP 5 development. The site is adjoined to the east and west by single storey brick and tile dwellings. The proposal 7 This proposal involves the demolition of the existing out building and construction of a two-storey detached dual occupancy dwelling in the rear year. The development has an FSR of 0.5:1. 8 Access to the new dwelling is proposed via an upgrading of the existing side driveway leading to the outbuilding. This driveway is to be 3 m wide finished in stencilled concrete. 9 An additional garden/planting strip of 0.5 m is to be incorporated adjacent to this driveway. 10 The driveway is to be widened towards the rear of the existing dwelling, to approximately 4.5 m. Planning controls 11 The planning controls identified for the appeal concern firstly: 1. Ku-ring-gai Planning Scheme Ordinance; under which the site is zoned Residential 2(c); 2. SEPP 53; 3. SEPP 55; 4. DCP 40; 5. Ku-ring-gai Dual Occupancy Developmental Control Code. The evidence 12 A detailed assessment report was provided by Ms J. Grant, consulting town planner for the applicant, and a planning response report Ms N. Richter, council's town planner. 13 Other objections contained in council's bundle of documents were considered. 14 From the evidence, council's basic objection to this proposal is that the new two-storey dwelling is uncharacteristic of the area because it is sited on the rear portion of the lot, with a relatively small curtilage compared to the surrounding area. Ms Richter, does not consider the site suitable for this form of development and says that a bet From the evidence, council's basic objection to this proposal is that the new two-storey dwelling is uncharacteristic of the area because it is sited on the rear portion of the lot, with a relatively small curtilage compared to the surrounding area. Ms Richter, does not consider the site suitable for this form of development and says that a better planning outcome would be achieved by improved integration between the recently constructed front house, if it was moved forward and possibly reduced in size. 15 Notwithstanding this, she accepted that some form of dual occupancy development, preferably a singe storey dwelling could be erected in the rear yard. If it was a single storey, it would have a smaller internal area and create less adverse impacts on the neighbouring property including the recently constructed two-storey front dwelling. 16 However, following her detailed assessment of the proposal Ms Grant says that the position of this new, recently completed two-storey house should be considered as one of the site constraints and the merits of the proposed two-storey dwelling assessed accordingly. Because she does not consider the impacts unreasonable she supports this proposal. 17 During the hearing, Ms Richter conceded that the direct streetscape impacts of the proposal were not such as to warrant refusal of the application because the two-storey dwelling could not be seen from the public domain. Also, whilst the dual driveways (i.e. the new 3 m access driveway, adjacent to the separate driveway for the existing front house was initially considered unsatisfactory, this was no longer pressed as the street presentation, with the proposed landscaping was acceptable. 18 However, the council's streetscape impact concerns relates to the broader concerns that the proposal is not sympathetic or consistent with the character of the surrounding area and the building is excessive in scale and overbearing in the local context, taking into account the proposed available rear yard area. 19 In my assessment of these concerns, a reasonable starting point is that the controls do allow for an appropriate two-storey house in the rear part of the yard. Then the prevailing controls in SEPP 53, allows development with a maximum F.S.R. of 0.5:1, to which the proposal complies. It also complies with the K.P.S.O provisions, which allows a built upon area of 60% and the proposal comfortably complies with this. 20 The other controls in the DCP Dual Occupancy Code provide minimum setbacks of which a minimum a 2.5 m setback to the boundaries is required. So that technically and numerically, the type of dwelling proposed is that envisaged by the prevailing controls, in my opinion. 21 In supporting the application, Ms Grant has referred to the planning principles for compatibility in the urban environment, which were established in Project Venture v Pittwater Council NSWLEC 191 and a particular relevance is: Planning principle: compatibility in the urban environment 22 There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve. 23 It should be noted that compatibility between proposed and existing is not always desirable. There are situations where extreme differences in scale and appearance produce great urban design involves landmark buildings. There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing. Finally, there are urban environments that are so unattractive that it is best not to reproduce them. 24 Where compatibility between a building and its surroundings is desirable, its main aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked. i) Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites. ii) Is the proposal's appearance in harmony with the buildings around it and the character of the street? 22 In response to the first question, Ms Richter indicated that the physical impacts on surrounding development comprised overlooking from the proposed first floor bedroom windows, overshadowing of the neighbouring property (No. 30 Clissold Street) and adverse visual intrusions due to the overbearing outlook from the neighbouring properties to the proposed two-storey. 23 However in response, the applicant has agreed to provide hi-lite windows to the upstairs bedrooms, which addresses the overlooking problem to a satisfactory level, as accepted by Ms Richter. 24 The overshadowing issue occurs due to the two-storey element and it causes shadowing to the living room window and part of the neighbouring rear terrace and this occurs after 1 pm. Up until that time, existing solar access is not interfered with. 25 The design criteria in cl 32 of SEPP 53 provides: c) Solar access and design for climate The proposed development should, where possible: i) ensure adequate daylight to the main living areas of neighbours in the vicinity and residents and adequate sunlight to substantial areas of private open space, and ii) involve site planning, dwelling and landscaping that reduces energy use and makes the best practicable use of natural ventilation solar heating and lighting. Note. AMCORD A National Resource Document for Residential Development, 1995, may be referred to in establishing adequate solar access and dwelling orientation appropriate to the climatic conditions. 26 The other reference is to Council's Dual Occupancy Development Control where in s 4.4.1 states that: "The design, siting and orientation of dual occupancy dwellings should provide at least 3 hours of solar access between 9 am and 5 pm to north facing windows and living rooms and outdoor living areas". "Dual occupancy dwellings should be designed to ensure that adjoining residential buildings and the major part of the outdoor living areas maintain at least 3 hours of sunlight between 9 am and 5 pm on June 22". 27 Insofar as the controls mainly refer to new development but reference is made to neighbouring properties, that they should expect to enjoy at least the same minimum level of solar access. 28 Ms Grants assessment is: The shadow diagrams indicate that the proposal will create some overshadowing of the adjoining dwelling to the east (being the battle-axe dwelling at 30 Clissold Street) in the afternoon during mid winter. Notwithstanding this minor extent of overshadowing to that property, the proposal still satisfies the minimum 3 hour requirements specified in Council's Development Control Code as well as the requirements set out in AMCORD. In the circumstances I am satisfied that the proposal ensures that adequate daylight is available to the main livings areas of neighbours in the vicinity and residents (of the proposal) as required by cl 32)(c)(i) of SEPP 53. 29 I accept this opinion as being reasonable in this case because the incremental shadowing is relatively minor and No. 30 does have a choice of other outdoor areas, which are unaffected. In my assessment the proposal does maintain adequate daylight and solar access in accordance with the relevant controls. 30 The next main question concerns the proposals appearance, in harmony with buildings around it and the character of the street. Whilst there is a general consistency of single level, older styled dwellings in Chauvel Close, nevertheless it was apparent from the view that this character is changing and this low density residential area is now experiencing a number of significant two-storey dwelling, which are discernable from the public domain. 31 Insofar as the proposed two storey dwelling fits with this emerging character, I also think that due consideration should be given to the approved SEPP 5 development that is in the process of construction along the adjoining rear boundary of the subject property. It will have some 14 units, being a mix of 1 and 2-storey dwellings with variable setbacks to the common boundary. Irrespective of its determination under SEPP 5, its built form has been deemed to be compatible with this neighbourhood and accordingly I think that it is appropriate to consider the character of this proposal relative to the new subject development, as well as the other neighbouring properties. 32 On this basis the SEPP 5 development has variable setbacks from the common boundary for the individual single and two-storey dwellings. Adjacent to the subject two-storey dwelling, the SEPP 5 development proposes single level dwellings, which have a setback in the order of 12.2 m. Then considering that the proposed two-storey element of the proposal has an internal setback of 2.9 m. I consider the separation distance reasonable and that the proposal is consistent with the emerging character of this area, which will be set by the SEPP 5 development. Also the SEPP 5 development will introduce two-storey houses and whilst the proposed two-storey dwelling will restrict to some extent the outlook for No. 30, nevertheless it complies with this character of a mix of single and two-storey houses. Therefore I do not consider it reasonable to refuse the application because it is not compatible and not in harmony with this neighbourhood, even though the existing houses on each side are single storey. 33 The other substantive issue concerns access to the proposed new rear dwelling. According to council's submission this arises because the designated parking space for dual occupancy is shown towards the rear existing dwelling. As the width of the proposed driveway is 3 m wide, this means that the dual occupancy vehicle has to reverse some 30 m along the drive way, which Mr Patterson submits is unsafe and not compliant with the provisions of Schedule 9 of the K.P.S.O, which must be considered. The K.P.S.O aims and objectives provides in 2(g) that: All new dwelling-houses and additions provide reasonable space on the site for the forward entrance and exit of vehicles; and … 34 However, it seems to me that the application of this objective would require realistic interpretation because it is just not feasible or practical in all new developments to incorporate on-site turning so vehicles enter/leave in a forward direction. This is the case with recently built new dwellings in the neighbourhood that were observed on the view. 35 Whilst I accept that this reversing movement is less than desirable, nevertheless the width of the driveway complies with the relevant Australian Standard, for approval. I also note this issue was considered by council's development engineer who raised no objection subject to the driveway being sealed and complying with the A.S. 36 Accordingly, I rely on this engineering conclusion that the access arrangement, are acceptable in this case. Reference to the aims of SEPP 53 are to encourage the provisions of housing which: a) broaden the choice of building types and locations available in the housing market, and b) make more efficient use of existing infrastructure and services, and c) reduce the consumption of land for housing and associated urban development on the urban fringe, and d) be of good design. 37 It then seems to me that this proposal satisfies the aim from broadening the choice of building type, because some of the residents may not consider this parking/access arrangements unacceptable. 38 Furthermore, if as it was put to the Court that the dwelling is to be occupied by other members of the family, then in that situation the driveway should be manageable. 39 Insofar as security was raised as an issue because the front door does not face the street, I consider the proposed building layout, nevertheless provides a reasonable security because security gates are provided along the driveway. Also at the entry to the new dwelling the kitchen does have opportunities to view the access way, towards the public domain. Therefore I do not consider that this issue is sufficient to warrant objection of the proposal. 40 The other significant objection comes from a neighbour at No. 9 Chauvel Close, regarding loss of outlook and noise disturbance. Following the consideration of the discussions on this site, I am satisfied that the proposed essential driveway, together with the new 1.8 m lapped and capped fence, to be erected by the applicant reasonably addresses these concerns. Conclusion 41 Having considered the evidence, the submissions and undertaken the view I am satisfied the proposal merits conditional consent. Insofar as there are a number of relevant planning controls the sites residential 2(c) zoning under the K.P.S.O allows the dual occupancy development via the overriding provisions of SEPP 53. 42 Implementation of the objectives for SEPP 53 inevitably results in some increase in density in these lower density areas, with some change in character as is proposed in this case. But I am satisfied that the new two-storey dwelling, albeit on a reduced effective area of land, nevertheless satisfies the general objectives to broaden the choice of dwelling type. 43 The building design complies with the basic 0.5:1 F.S.R. requirement for approval and the K.P.S.O. built upon area restriction of 60% and the amended design in terms of the hi-lite bedroom windows then does not unreasonably impact on the amenity of the adjoining properties. As I have stated previously, I consider the resultant in solar access arrangements for No. 30 satisfactory in terms of the SEPP 53 provisions and also Schedule 9 provisions. Those Schedule 9 provisions are contained in 2(a) that: All new dwelling-houses and additions to dwelling-houses maintain a reasonable level of sunlight to neighbours' living areas and recreation space between 9am and 3pm during the winter solstice. 44 Based then on the development engineer's comments, I accept the proposed access acceptable for this development and it would be unreasonable to reject it, because on-site manoeuvring was not provided to enable all movements to be in a forward direction. 45 In my assessment, the other matters can reasonably be covered by the conditions of consent. So in the ultimate, I am satisfied that the proposal demonstrates reasonable compliance with the prevailing controls in SEPP 53 and the associated considerations K.P.S.O Schedule 9, which are closely aligned to the matters for consideration in SEPP 53. Court Orders 46 The Court orders are: 1. The appeal is upheld. 2. Development consent is granted to DA 475/04 for a detached dual occupancy dwelling at No. 7 Chauvel Close, Wahroonga in accordance with the conditions in Annexure A. 3. The exhibits may be returned except Exhibits A, B, 2 and 4. 4. Each party to pay their own costs. ___________________ R Hussey Commissioner of the Court Ljr/rjs 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. 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