Land and Environment Court of New South Wales CITATION : Complete Consultants Pty Ltd v Ku-ring-gai Council [2006] NSWLEC 338 APPLICANT Complete Consultants Pty Limited PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 11560 of 2005 CORAM: Hoffman C KEY ISSUES: Appeal :- Deemed refusal of a dual occupancy, setbacks, streetscape, development standards, visual bulk and scale, solar access, suitability of the site, Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planning Policy 53 Metropolitan Residential Development Ku-ring-gai Planning Scheme Ordinance CASES CITED: Falcomata v Ku ring-gai (No 2) [2005] NSWLEC 459 DATES OF HEARING: 14/03/2006, 25-26/05/2006 EX TEMPORE JUDGMENT DATE : 05/26/2006 APPLICANT Mr S. Klinger, solicitor LEGAL REPRESENTATIVES: RESPONDENT Mr D. Thomas, solicitor Instructed by Mr. A. Hudson, solicitor of Wilshire Webb JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 26 May 2006 11560 of 2005 Complete Consultants Pty Limited v Ku-ring-gai Council JUDGMENT 1 This is a Class 1 Appeal No. 11560 of 2005 between Complete Consultants Pty Limited and Ku-ring-gai Council, in regard to the deemed refusal of a proposed dual residential occupancy at No. 2 Luton Place St Ives, being on the south-west corner with Memorial Avenue. The site is 1018 sq m in area and rises a metre or so above the road within the front setback but then is relatively level. 2 The locality consists of detached houses set amongst trees and gardens dating from World War II to about 1970 in architectural style. Most houses are two storey, many with the second storey in the roof with dormer windows. No. 4 Luton Place is of the latter design and has a front setback of about 12 m. 3 No. 32 Memorial Avenue, the southern neighbour of the proposal, is a full two-storey house well setback from the street but with a large attached single storey garage in front of it having about a fourteen metre front setback. No. 32 is actually separated from the subject site by a driveway to a battleaxe allotment behind Nos. 4 and 6 Luton Place. 4 Memorial Avenue runs at an angle to the cross streets and Luton Place does not continue across the intersection. 5 The street on the other side of the intersection is Lincoln Avenue. No. 1 Lincoln is on the south-east corner, No. 2 is on the north-east corner. No. 1 Luton Place is on the north-west corner. All three of these houses are single storey as is the existing house on the subject site. Being corner lots the existing houses do not conform to the setbacks of the other houses in each street and the offset nature of the intersection means the houses on the corners are set at different angles to each other in a fairly informal layout. Within Luton Place and along Lincoln and Memorial Avenue the houses are lined up more formally. 6 The original proposal had a steep roof and high gable ends with large storage spaces within the roofs. The living, family and kitchen areas were towards the rear with access to private courtyards on the southern side. The garages were beneath each dwelling, one with access from Luton Place and the other from Memorial Avenue. Due to the rise in the ground from each street the garages are basement type. 7 The original issues were: (1) Streetscape. The proposed front setbacks to Luton Place and Memorial Avenue and the western side setback will result in a development with a bulk and scale that is excessive and inconsistent with the existing built form of the surrounding environment which forms the current streetscape. Particulars. The proposal is inconsistent with the aims of State Environmental Planning Policy 53 as set out in cl 3(1)(d). The proposal fails to be a good design by being inconsistent with cll 32(a)(c)(h) of SEPP 53. The proposed setback of 6 m of dwelling 1 from Luton Place boundary is inconsistent with the adjoining development. The development will visually dominate the street, fails to have adequate regard to the character of existing adjacent and nearby development. The proposed minimum ground floor setback of 5 m from Memorial Avenue frontage is significantly closer to the street than adjoining and will be inconsistent with adjoining development and will visually dominate the street. The height and bulk of the development is exacerbated by the elevated nature of the site and the proposed development being located within 7 m of the Memorial Avenue frontage and 6 m to the Luton Place frontage, which includes a full two-storey height allowing for garage levels and the proposed first floor attic rooms. (2) Non-compliance with development standards was deleted during the hearing. (3) Visual bulk and scale. The proposed development is excessive in term of its bulk and scale and will visually dominate the streetscape and adjoining properties. Particulars. The proposed development is inconsistent with cl 32(a)(h) of the SEPP 53. The location of dwelling 2 in close proximity to the Memorial Avenue frontage is significantly closer to the street than existing development along this side of Memorial Avenue. The proposed dwelling is situated at a minimum of 5 m at ground floor and 7 m at first floor, whereas existing development along this side of Memorial Avenue is generally set back greater than 17 m from the street boundary. The setback of dwelling 1 from Luton Place will be a minimum of 6 m, which is significantly closer to the street than the adjoining dwelling at No. 4 Luton Place, and uncharacteristic of other development in Luton Place. The proposed setback of the development from the Luton Place and Memorial Avenue frontages will result in the dominance of built form as uncharacteristic of the surrounding area and is incongruent with adjoining development. The proposed development will appear as a two-storey development owing to the visibility of basement level garages and a significant roof form. The proposed development will not contribute to an attractive residential environment with clear character and identity and therefore not considered to meet the relevant streetscape principles of SEPP 53. (4) Solar Access. The proposal fails to provide adequate solar access to internal living areas within dwelling 1 and dwelling 2 and fails to ensure that private open space areas for both dwellings receive adequate solar access throughout the year. The proposal is therefore considered to be inconsistent with the objectives of cl 32(c) of SEPP 53. Particulars. The proposal is inconsistent with the provisions of cl 32(c) of SEPP 53, the solar access and design for climate principles expressed in part 4.4.1 of council's dual occupancy code and elements 5.4 and 5.7 of AMCORD. The location of the living spaces to the south of the development, poor internal layout of the development, north-south orientation of the dwellings, general site dimensions and orientation of the site contribute to poor solar access to the family dining and lounge room windows in both dwellings. The proposed development severely overshadows the rear private open spaces of both dwellings. The shadow impact during the winter solstice results in less than two hours of sunlight being available to these critical areas. Opportunities to modify the development to improve solar impact is restricted because of the orientation of the allotment and the prominent corner location preventing the location of private areas close to the street. The poor solar access within the development is a direct result of the dimensions and orientation of the site and poor design and layout of the proposed development. The location of living spaces to the south of the development, the north-south orientation of the site, and the lack of sufficient site depth from Memorial Avenue contributes to inadequate solar access for the development to the extent that less than two hours of sunlight falls on private open spaces and south facing windows to living areas during the winter solstice. Improved solar access other times of the year does not sufficiently outweigh the severely restricted solar access to internal living areas and private open spaces during winter months. (5) Suitability of the site. The site is not considered suitable for the proposed attached dual occupancy. Particulars. The site location dimensions and orientation contribute to likely impacts including and overly dominant presentation of bulk and scale to Luton Place and Memorial Avenue. Poor solar access within the development and poor siting of the development in the street. (6) Inconsistency between plans was deleted during the hearing. 8 The Court heard the respondent's evidence from: + Mrs Weaver, objector of 4 Luton Place and + Mr G Gatelaris of 3 Luton Place + Mr D. Hoy, town planner for the Council. 9 Written objections were received from four other residents of Luton Place in regard to the reduced front setbacks of the proposal being out of character with the streetscape, dual occupancy being detrimental to the detached single house character of the street, extra traffic and parking in the cul-de-sac and loss of greenery due to the greater site coverage of dual occupancy. 10 The objectors also saw the original proposal as three storey comprising the garages, the living levels, and the large roof spaces which had windows in the gable ends. Mrs Weaver was also concerned about loss of morning sun to her ensuite and east windows of her south facing family room at No. 4. 11 The applicant's evidence was heard from: + Mr C E Young, consultant town planner. 12 There were also reports from Urban Tree Management Consultancy Director Mr D Draper, they had carried out root mapping of the trees and could retain eight existing trees on site and on the public footpath reserve. Only a ninth tree would be lost on the Memorial Avenue frontage to enable the construction of the new driveway to unit 2 of the proposal. A mature blue cedar on the front boundary adjacent to No. 4 Luton would be retained. The new driveway would remain at the existing ground gradient until past the tree roots and then descend to the basement garage under unit 1. 13 Messrs Hoy and Young had produced a joint report in Exhibit 7 and remained in disagreement on several issues. They did agree that the attic spaces were to be deleted from the proposal but the high roof and gables remained and one part of the roof exceeded the council's dual occupancy code height limit of eight metres. As a result of the amendments the plans then did not exceed the floor space ratio. The applicable statute is State Environmental Planning Policy 53 Metropolitan Residential Development and it permits dual occupancy under certain conditions even though under zone 2(c) of the Ku-ring-gai Planning Scheme Ordinance that use is prohibited. 14 The applicant tendered a letter in Exhibit E from the Minister for Planning to the Mayor of Ku-ring-gai confirming that Ku-ring-gai is not exempt from the provisions of SEPP 53. 15 Height poles were erected on the site so that I could observe the effect of the proposal in the streetscape. During the hearing the applicant invited the Court to identify issues of particular concern and I indicated that issues 1 and 3 required close consideration due to the provisions of cl 32(a) of SEPP 53. The elevation of the site above the street and the height of the roof and gables combined with the reduced street boundary setbacks that are often found on corner allotments may produce an appearance that would be out of scale with nearby houses. Whilst it is accepted that under SEPP 53 dual occupancy normally results in greater bulk than single detached houses, it is desirable to minimise bulk of dual occupancies by good design to obtain a compatible fit with the relevant setting and streetscape around the subject site. 16 Issue 4 also required close consideration in relation to cl 32(c) of SEPP 53 as the plans did indicate all the principal living spaces of both units faced south. Whilst this had the benefit of giving direct access to the proposed private open space courtyards it meant the living room, dining rooms, kitchen and family rooms had little or no access to direct sunlight mid-winter and the high roof and bulk of the building largely overshadowed the private courtyards. 17 On a site where the existing house was to be knocked down and new buildings erected one would hope better orientation could occur, even with the constraint that private courtyards within the north and east facing street-front setbacks may not be desirable from a streetscape point of view. 18 I noted that Mrs Weaver's east facing windows of her south facing family room currently received sun in mid-winter from about 10 am to midday and the proposal as it stood then would retain that for the most part even if marginally reduced and this would generally satisfy cl 32(c), nevertheless a reduction of the roof height of the proposal for streetscape reasons would probably improve even the current solar access to No. 4 Luton Place. 19 The applicant sought an adjournment without objection from the respondent to consider changes to the design, adjournment was granted. Amended plans were prepared and exhibited during May 2006. Mr and Mrs Weaver were the only persons to lodge a further objection, in Exhibit 10, generally on the same issues as previously. The council had received a letter of support for the proposal from the owner of No. 2 Lincoln Avenue, diagonally across the intersection from the site. 20 Mr Hoy had prepared a further report that in summary: (1) The proposal remained visually prominent and failed to have adequate regard to the character of adjacent houses. (2) The proposal would appear as two storey owing to the visibility of the basement garages. (3) The street setbacks could be increased to give greater consistency with its neighbours. 21 The amended drawings tendered in Exhibit M showed: (a) The roofs lowered considerably and the gables removed except for over the entrance porches. The roof is now mainly hipped and tiled. (b) Dwelling 1 had its lounge room relocated to be on the northern façade with large north facing windows and a balcony. The kitchen and family rooms that remain south facing have large skylights to obtain direct sunlight. (c) Dwelling 2 removed its family room from a south facing position to be east and north east facing. The living room is moved to another position and has east and north east windows. The dining room although still facing south has a large skylight to obtain direct sun. (d) By lowering the roof and deleting the gables the building now appears as one storey above basement garages versus two storey above basement garages or three levels as previously referred to by the council and the objectors. 22 The street facades and the roofs above them had been set back further than the original proposal and were highly articulated. 23 The applicant tendered a new BASIX certificate to show the proposal satisfied the environmental performance requirements. 24 In examination of Mr Hoy, he agreed many houses in the locality are two-storey and the proposal would be reasonably compatible within the mix of one and two-storey house types near to the site. He continued to press that the prominence of the site on a corner, and with the ground rising up to the site from the street, and the street setbacks proposed, the development would still stand out. He thought larger street front setbacks could make it acceptable. 25 Under examination he agreed both street front facades were well articulated as are the various roof planes above, and this reduces the visual bulk of the building. He also agreed that if the proposal is confined to the front setbacks of No. 4 Luton Place and No. 32 Memorial Avenue, the space left on the subject corner allotment would be impractical even for a single house. 26 The shadow diagrams of the original scheme in Exhibit L were compared to the amended scheme in Exhibit M. The lowering of the roof of the proposal showed that in mid winter Mrs Weaver's en-suite window would be in shade until between 9 am and 10 am whereas it now was in shade until between 8 am and 9 am. The east facing windows of her south facing family room however would have improved sunlight compared to the shadow created by the existing house on the subject site. At present in mid-winter the windows are in shadow until 10 am when they start to get sun but are still about one third in shadow at 11 am. The amended proposal shows the windows will start to get sun a little before 10 am and be in full sun by 11 am. Although marginal in the improvement it is nonetheless an improvement for the Weavers over the existing situation. 27 It is true part of the Weaver's backyard will have increased shadows from the proposal mid-winter but the shadow will be gone by about 11 am. In fact due to the height of the boundary fence which itself casts a shadow, the house shadow will probably be gone before 11 am. By the equinox the eastern windows of the Weavers are in full sun before 9 am and the shadow is gone from their yard by 10 am. In regard to the shadow the proposal casts on its own private courtyards it must be said the amended plans change those mid-winter impacts very little. 28 Dwelling 2 gets some direct sunlight to about one third of its courtyard before 9 am in mid-winter and that reduces until at noon it is fully shadowed. Dwelling 1 courtyard will get little sun due to the shadows cast by its own building and No. 4 Luton Place. There will be sun on the vegetation at the rear boundary which could provide some brightness within the courtyards in mid-winter. By the equinox, however, the courtyards obtain sun to about two thirds of their area most of the day. 29 Given the improvement to the solar access to the living rooms of both units and the satisfactory BASIX assessment and the constraints of the corner allotment minimising the options for north or east facing courtyards, I do not see this shortcoming as sufficient for refusal. It is mainly the impacts on the neighbours that are reduced. To the south the impact on the neighbours is negligible as the mid-winter shadows fall on the driveway to the battleaxe lot. 30 Turning to the streetscape issues Mr Hoy agreed in examination that on the Memorial Avenue frontage, the proposal had about a 6 m setback from its southern boundary and with the width of the battleaxe driveway there would be about 12 m separation between the proposal and the house on No. 32 and about 18 m separation to the garage of No. 32 in its front setback. 31 The articulation on the Memorial Avenue frontage steps it in and out between 5 m and 7 m setback. In electing the Memorial Avenue frontage as the minor frontage of the corner allotment, that setback is about double the minimum side setback of No. 1 Luton Place to Memorial Avenue and about the same as the minimum setbacks of Nos. 1 and 2 Lincoln Avenue on the other corners of the intersection. 32 The council's dual occupancy code although having little statutory weight against SEPP 53 allows corner lots to have a setback varying between five metres and seven metres and the proposal complies with this. 33 The amended drawings indicate to me that the proposal will appear as one storey above basement garages, not two storey as Mr Hoy said. The other houses on the corners of the intersection are one storey also. 34 The rise in the ground on the subject site although making the proposal more prominent is a natural outcome of the topography and would occur even with a new larger house on the subject site. 35 The front setback to Luton Place of 7 m to the nearest front wall and 11.5 m to the furthest front wall in the articulated façade indicates the extent of articulation of the elevation that is now proposed compared to the original design. 36 The council code seeks 12 m front setback on the high side of the street or the front setback established by the other houses in the street. Measuring on the 1:400 scale aerial photo tendered by the council in Exhibit 6, although No. 4 Luton Place has about 12 m front setback; No. 6 varies between about 10 m and 12 m; No. 1 varies between about 9 m and 11 m; No. 3 varies between about 3 m and 7.5 m and No. 5 varies between about 10 m and 15 m. The variation evident from the air is not quite so evident on the ground due to the lack of front fences and the amount of street vegetation that cuts off view angles. 37 Although the proposal will on average have a little less front setback than the other houses the landscape plan in Exhibit B shows extensive street front hedges, gardens and tree planting far more than currently exists on the subject site. Once that has grown to soften the built form and further obscure the view angles along the street I am satisfied the streetscape impact of the proposal will be complementary and acceptable. 38 The design of the proposal to have each front door and garage facing a different street will add to the streetscape compatible outcome as the separation distance between the two is about 40 m and around the corner from each other. Combined with the intervening landscaping the fact that the development is a dual occupancy may not be obvious to the casual observer. Another benefit of that design is that only one dwelling is accessed via Luton Place just like the existing situation, so the objector's fears about extra traffic will not occur. Residents and visitors of the other dwelling will use Memorial Avenue. 39 The conditions of consent have been amended to suit the new drawings. In regard to conditions 55 and 56, I intend to delete the necessity for a bond from them in conformity with the planning principle in Falcomata v Ku-ring-gai (No 2) [2005] NSWLEC 459, however, I retain their intention of being performance requirements on landscape elements of the proposal and incorporate appropriate wording. 40 In regard to the conditions, I insert in condition 1 the words: "except as further amended by the following conditions," at the commencement of the text. 41 I add to the list of drawings in the landscape plan that it is issue A and I add the house 1 and house 2 driveway levels plans drawings 116-12 and 116-13 by Complete Consultants dated 6 March 2006. In condition 36 in the first line I delete the words: "when necessary." 42 In condition 55 I reword the condition to read: "Landscape works are to be installed and maintained to the satisfaction of Ku-ring-gai Council in accordance with the approved landscape plans and other landscape conditions for the life of the buildings approved in this consent." 43 Condition 56 is reworded as follows: "The following tree is to be maintained in the same condition as found prior to commencement of site development work. Conditions of this consent relating to the protection of the tree are to be implemented under the supervision of a qualified arborist. Tree location - cedrus atlantica." 44 Condition 63 is reworded as follows: "The landscape work shall be completed and certified in writing by the supervising arborist to the principal certifying authority prior to the release of the certificate of occupation and the landscape works and vegetation are to be maintained in a satisfactory condition at all times for the life of the buildings approved in this consent." 45 The orders of the Court are: 1. The appeal is upheld. 2. Development Consent is granted for the erection of a dual occupancy development and demolition of an existing house at No. 2 Luton Place, St Ives as shown in the drawings listed in Condition 1 of Annexure 'A' hereto all as amended by, and built in accordance with all the conditions in Annexure 'A'. 3. The exhibits are returned to the parties except Exhibits 1, 2, 9, 10, 11 and B, F, H, L and M. ___________________ K G Hoffman 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.