Land and Environment Court of New South Wales CITATION : Shuttleworth v Ku-ring-gai C [2005] NSWLEC 324 APPLICANT Brian Shuttleworth PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 11304 of 2004 CORAM: Hoffman C Appeal :- Construction of three two bedroom two storey villas - demolition of existing house - neighbourhood amenity - character - streetscape - convenient and safe access - water management - public interest - visual privacy KEY ISSUES: Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planning Policy 5 Ku-ring-gai Planning Scheme Ordinance DATES OF HEARING: 11/03/2005 and 02/06/2005 EX TEMPORE JUDGMENT DATE : 06/02/2005 APPLICANT Mr S. Kondilios, solicitor of Maddocks LEGAL REPRESENTATIVES: RESPONDENT Mr A Hudson, solicitor of Wilshire Webb JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 2 June 2005 11304 of 2004 Brian Shuttleworth v Ku-ring-gai Council JUDGMENT 1 This is a Class 1 Appeal No. 11304 of 2004 between Brian Shuttleworth and Ku-ring-gai Council in regard to the deemed refusal for demolition of an existing house and erection of three two bedroom two-storey villas under State Environmental Planning Policy 5 for accommodation of elderly persons or persons with a disability. 2 The site is No. 37 Horace Street, St Ives. Horace Street is a continuation of Link Road on the west and Eastern Arterial Road on the east. It is a busy road and is opposite the combined St Ives primary and high schools. There is a lights controlled pedestrian crossing adjacent to the site. The allotment is 18.2 m wide by 57.9 m long and is rectangular and almost flat with a slight fall to the rear. 3 There are some large trees near the rear boundary and more just over the boundary in the backyard of a house at No. 25 Alvona Avenue and also at the adjoining house to the north-west. The trees just inside the rear boundary of the site were to be kept, some other trees near the front and on the side were to be removed. One large tree just inside the rear yard at No. 3 Sutton Place is one of the trees just off the site proposed to be removed by the applicant subject to the consent of No. 3's owners. 4 The subject site being 57.9 m deep is a little deeper than its adjoining neighbours at Nos. 35 and 39 Horace Street. As a result of its rearward projection it has three extra neighbours at the back being No. 3 Sutton Place, No. 25 Alvona Avenue and No. 3 Amesbury Avenue. All these are single storey detached houses, No. 39 Horace Street however has just been approved by council for four two-storey State Environmental Planning Policy 5 units. 5 The issues are: 1. Neighbourhood amenity, character and streetscape . (a) Trees T1, T2 and T3 should be retained to protect and maintain the character and amenity of the neighbourhood in accordance with cl 25(a) of the SEPP 5 cl 1(v) and Sch 9 cl 1(a)(b) and 2(c) of the Ku-ring-gai Planning Scheme Ordinance . T3 is located on the adjoining land to the north, No. 3 Sutton Place, and the owners of this land have not given consent to the removal this tree or any pruning of the canopy, which may be required for development. (b) The western rear setback to the eucalyptus saligna blue gums, trees T1 and T2 from unit C is inadequate at 4.5 m and should be increased to 7 m, a 7 m setback will: (i) protect the root zones of the trees from the impacts of construction and excavation (ii) prevent the scale of any pruning of the canopy which overhangs the development undertaken in accordance with council's tree preservation order resulting in adverse impacts on the viability of the trees and (iii) protect the viability of the trees to maintain the character and amenity of the neighbourhood. (c) The northern side setback to the eucalyptus saligna blue gum tree T3 on the adjacent property from unit C being between 2.9 m to the patio and 3.4 m to the unit C wall is inadequate and should be increased to 7 m to both wall and patio, a 7 m setback will: (i) protect the root zones of the tree from impact of construction excavation, (ii) prevent the scale of any pruning of the canopy which overhangs the development undertaken in accordance with council's tree preservation order resulting in adverse impacts on the viability of the trees and (iii) protect the viability of the trees to maintain the character and amenity of the neighbourhood in accordance with cl 25A. (d) The proposal fails to maintain a clear character and identity for locality as required by SEPP 5 cl 25 and Ku-ring-gai Planning Scheme Ordinance cl 1B Sch 9. Cll 1A, B, 2C and E, because: (i) fails to provide for a large open space at the rear compatible with the predominant landscaped area of the residential environment and antipathy with the adjoining properties, (ii) setback to the southern side of unit C 1.05 m to the roof overhang does not provide adequately for the planning of trees or for screening the built two-storey form from No. 3 Amesbury Avenue, St Ives. The accumulative impact on No. 3 Amesbury Avenue is particularly significant given the recently approved SEPP 5 development at No. 39 Horace Street. (iii) the setback to the southern side of unit C 1.05 m to the roof overhang does not provide adequately for the planning of trees or for screening the built two-storey form from No. 39 Horace Street St Ives. The built form will unduly dominate the small private open space area of the recently approved unit 3 at No. 39 Horace Street. (iv) the location of a 1.8 m solid fence on the front boundary is not in sympathy with other fences within the streetscape and should be set back 1 m for the entire length of the fence. (v) There is inadequate space beside the driveway to provide for adequate landscaping to reduce the impact of a long driveway on the streetscape and No. 39 Horace Street. 2 Convenient and Safe Access. The proposal fails to provide for convenient and safe access for vehicles and pedestrians as required by SEPP 5 cl 25F because: The lack of provision of a separate pedestrian access across the driveway leading to the garages and the turning bays, especially in the path of reversing cars results in potential pedestrian and vehicle conflicts, similarly access to mail and waste areas via the driveway results in similar conflict. 3 Water Management. (a) The proposal results in unacceptable wastage of water and 2,000 litre water tanks should be provided in accordance with SEPP 5 cl 25(d)(ii) for each unit, with the overflow connected to the onsite retention system, this would: allow for retention and re-use of stormwater onsite reducing the demand for fresh townwater supplies. Note, in order to maintain the environmental character of the locality and to meet the requirements of SEPP 5 tanks should not reduce the landscaped area at the site. 4 Public Interest. (a) The proposal is not in the public interest as required by the Environmental Planning Assessment Act s 79(C)(1)(e) as it does not adequately respond to the issues raised by the objectors: (i) unsuitable for older disabled persons in a two-storey building, proximity to the school and noise from main road; (ii) impact on eucalypts to the west and north of unit C and impact of these trees on safety; (iii) overdevelopment of the site; (iv) out of character with the locality; (v) visual bulk dominance of the roof form reduce setbacks especially unit C; (vi) need to increase the height of fence to No. 25 Alvona Avenue to 1.8 m for privacy; (vii) overshadowing to the south; (viii) lack of adequate access to public transport shops and services; (ix) traffic hazards congestion near pedestrian crossing, the school and garbage bins on the street; (x) inadequate parking on site especially as on street parking is limited; (xi) inadequate space for vehicles to enter and exit and turn; (xii) impact and privacy of Nos. 23 and 25 Alvona Avenue and No. 35 Horace Street, No. 3 Amesbury Avenue and No. 5 Amesbury Avenue; (xiii) flooding to No. 3 Amesbury Avenue; (xiv) first floor areas have inadequate solar access. 5 Issues, which may be conditioned. (a) The proposal fails to provide for convenient and safe access for vehicles and pedestrians as required by SEPP 5 cl 25F because: (i) the driveway width of 2.7 m does not meet the relevant standard of 3 m wide to allow access for emergency vehicles and adequate sight lines; (ii) the proposal does not provide a barrier between the dedicated pathway for pedestrians and cyclists and the driveway. Note, these can be addressed by a condition requiring a vibraline to separate the walkway and the driveway; (iii) the garages to units A and B do not meet the SEPP 5 minimum standard of 3.2 m by 6 m free of any obstruction such as doorways or steps and are inadequate in size to allow convenient access from vehicles to the units. Note, this can be addressed by a condition requiring the garages to be increased in width at the rear. (b) Visual Privacy. (i) The proposal fails to adequately maintain the privacy of its residents or of neighbouring development. (ii) The first floor balcony at the rear of unit C results in adverse impacts on the privacy of neighbouring developments, should be deleted. This would; (iii) prevent overlooking of the private open space areas at No. 25 Alvona Road and No. 3 Sutton Place, St Ives, and (iv) improve compliance with cl 25(b)(i) of SEPP 5, and cl 1(b) Sch 9 cll 1(a) and 2(b) of the Ku-ring-gai Planning Scheme Ordinance . Note: this can be addressed by a condition requiring deletion of the balcony. 6 The following represented the applicant at the on-site hearing: * Mr S Kondilios, solicitor of Maddocks, * Mr A Minto, town planner, * Mr B Shuttleworth, applicant and * Ms P Adraskelas of Maddocks. 7 The respondent was represented by: * Mr A Hudson of Wilshire Webb * Ms C Rose, solicitor of Wilshire Webb, * Ms T Southwell of Ku-ring-gai Council, * Ms S Feakes resident and objector of No. 3 Amesbury Avenue, * Mr C Feakes, resident and objector of No. 3 Amesbury Avenue, * Mr R Mackie, objector and resident of No. 22 Alvona Avenue, * Mr A McPherson, objector and resident of No. 25 Alvona Avenue, St Ives and * Ms R Delane of No. 35 Horace Street, St Ives. * Dr Ho of No. 3 Sutton Place, who attended for a short period. 8 The parties had agreed that there should be Court appointed experts Ms K Gordon, town planner and Mr I English, arborist who had prepared reports and attended also. 9 There was a disabled persons access report by Mr Relf a specialist in those aspects. He was not required by the parties to attend the hearing. 10 Amended plans were tendered at the hearing that were said to address many of the objectors concerns of overlooking, overshadowing, overland stormwater flows, visual impact and tree removal. 11 Dr Ho, whilst objecting to the development accepted that if it was approved, tree T3 on her property should be removed and she provided in Exhibit 5 a letter to that effect. 12 Mr English, the Court appointed expert arborist, agreed that tree T3 was a 28 m high and beautiful large Sydney blue gum. He had examined it and found it was badly storm damaged in the wild wind storms of the 1990s, regrowth branches were poorly attached and would break off in future storms, the core of the tree was decaying. It was a tree with two trunks and borers had set up in the crook between the trunks. They would eventually weaken one or other of the trunks until one fell. The tree was close to Dr Ho's house and close to dwelling C of the proposal. Its branches overhung both homes with a canopy diameter of about 20 m. He agreed that tree T3 should be removed. 13 Trees T1 and T2, also both Sydney blue gums were also large trees at the rear of the site and close together. T2 had deformed T1 such that it was structurally weak. T1 had bark inclusions that split and weakened its trunk low down, and about 6 m up its trunk bifurcated like T3, and also it had borer infestation. Mr English said, T2 was also dangerous and should be removed. 14 With it gone, T1 being deformed and spindly was also likely to come down in a storm, he recommended it be removed also. 15 He said, replacement trees could be spaced out along the rear boundary so as to be well away from the houses and each other. He recommended grey iron barks instead of blue gums because the former species were less prone to storm damage, borers and falling branches. 16 As a result of Mr English's evidence, issues 1(a) to (c) inclusive were resolved. He had comments to make on other aspects of the landscape plan that were incorporated in changed conditions of deferred commencement. They addressed to Ms Gordon's satisfaction concerns for visual impact on neighbours to the rear. 17 The major objectors concerns arose from unit C at the rear of the site. Ms Gordon sought unit C be moved 1 m east to give more separation from the rear neighbours and also from the southern boundary. Mr English preferred that to give more room for the new trees at the rear of the site. 18 The neighbours were concerned at the proximity of unit C to their rear or side fences. Ms Gordon said the unusual projection of the rear boundary of the allotment beyond the rear fences of the other Horace Street allotments was the main cause of neighbours feeling an impact. Unit C was mainly one storey with rooms in the roof, with dormer windows of small eyelet style that would not give rise to privacy impacts. The design had been changed to delete a balcony of unit C on the same side as No. 3 and the garage had been given a larger set back to allow more boundary vegetation to soften the built form. It was now quite satisfactory she said. 19 She acknowledged that having unit C at the rear of the allotment would not permit the neighbours to see only backyard open space and greenery across their back fences. They wanted that outlook retained as it was part of the character of the area. But the proposal was below the maximum density permitted under SEPP 5 and could not be refused on that basis. The presence of unit C would certainly not be dominant or even prominent said Ms Gordon. 20 As for the streetscape appearance of the proposal from Horace Street, she said it would appear as a single dwelling rather than as a cluster of three. The only way a person would realise anything different would be the number of letter boxes, or if one approached the driveway and carefully look along it. She held the opinion that issues 1(d)(i)(ii)(iii) and 4(a)(ii)(iii)(iv)(v)(vi)(vii) and Issue 5(b)(i)(ii)(iii)(iv) visual privacy were now satisfied. 21 The neighbours and Ms Gordon's concern about fencing materials and heights, and the driveway width, and landscaping widths along the south boundary to No. 39, were resolved in new conditions and that resolved issues 1(d)(iv)(v) and condition 4(a)(vi). 22 Ms Gordon said overshadowing was really only relative to No. 3 Amesbury Avenue and the new SEPP 5 development at No. 39 Horace Street. She said shadows from unit C in mid-winter occurred only to the back of the rear yard of No. 3 from 9 am to about noon, the yard was so large the shadow at no time approached 50% of the area of the backyard and that was the control. The sun certainly never went anywhere near the house. Afternoon sun was available with no impact from the proposal and therefore the impact was reasonable on No. 3 Amesbury Avenue. 23 On No. 39, Ms Gordon said unit 3 of that development did have shadow from the proposal at nine am mid-winter but from noon it had sun to 50% of its courtyard being 38.5 sq m area of sun and that gave it three hours minimum to 3 pm. On unit 1 of No. 39, it had a front courtyard facing east and had plenty of sun in the morning until noon and in the afternoon most shadow came from its own fence not the proposal. She concluded that although solar access to No. 39's courtyards was at minimum requirement, the proposal's impact was quite acceptable. Also, the interior living spaces at No. 39 would get good solar access to its northern windows mid-winter. As a result Ms Gordon said, issue 4(a)(vii) was resolved. 24 On solar access to the upper floor bedrooms of the proposal she said, the eyelet style dormer windows gave each room good cross-ventilation and access to sun on the north, east or west directions. In most cases in at least two directions to each room. She said, this was sufficient to satisfy issues 4(a)(xiv). 25 In regard to water management issue (3), it was possible to install tanks as suggested for watering of on-site plants. Concern by Nos. 3 and 5 Amesbury Avenue, about overland stormwater flow was considered by Ms Gordon to be satisfied given the stormwater detention system shown on the drainage plans. It was also covered by draft conditions and would dramatically reduce existing overland flow from the subject site compared to the present time. In fact, the drainage plan took all roof and pavement rainwater to a tank on the Horace Street frontage and any surcharge from the tank would be to the council's drains in Horace Street once the development was built. As a result issues 3 and 4(a)(xiii) were resolved. 26 Changes to the driveway layout had been carried out to ensure good safety sight distances at the boundary, and the driveway had been able to be reduced in total width by sharing it with the pedestrian pathway on-site. The two were to be separated by a rumble strip to warn drivers and there being only three units on-site Mr Relf believed that the safety concerns were quite well dealt with. There was also provided a turnaround for vehicles adjacent the communal open space on the northern boundary of the site between units B and C. This would enable any cars that could not enter a garage to turn around, to carry out the manoeuvre without reversing to the street. Also it enabled vehicles to enter and leave unit C's garage in a forward direction as could occur with the other units provided the garages were widened as it was conditioned in the draft provisions. 27 The proposal met the SEPP 5 requirements for on-site parking and could not be refused on that basis. The existing situation that the local residents had noted was due to no parking on Horace Street being allowed. Most overflow parking from the schools went into the side streets, namely, Amesbury Avenue. Whilst this was an existing situation the proposal was not expected to provide a solution to that under the provisions of SEPP 5. As a result issues 4(a)(x) and (xi) and issue 5(a)(i)(ii) and (iii) on convenient and safe access were resolved. 28 The very wide footpath reserve on Horace Street gave added safety for drivers entering and leaving the site if there was any intermixing with school children using the footpath and the adjacent pedestrian crossing. The wide footpath also made it quite safe and acceptable for garbage bins to be put out there for collection. These assessments resolved Issues 2 and 4(a)(ix) and (xi). 29 This left compliance with access to public transport. Mr Relf, the disabled access expert, had recommended in his report a pedestrian footpath suitable for disabled persons be constructed from the site across the lights controlled crossing to the east of Horace Street then down Torakina and Yarrabung Road to a bus stop that gave two way access to St Ives Shopping Centre. The bus stop was near the limit of 400 m from the site set down in SEPP 5. 30 The applicant felt that other bus stops in Horace Street would be more suitable and avoid the distance. However, it was found those buses were "through-buses" on the link road and did not go into the St Ives shops and would require a 400 m plus walk from the closest bus stop to the shops. The applicant reverted to Mr Relf''s recommendation and suitable conditions for a footpath and a bus stop shelter and seat were agreed to resolve issue 4(a)(viii). 31 Issue 4(a)(i) was met in Mr Ralph's opinion. Each unit had its main bedroom and living areas downstairs with visitor's bedrooms upstairs. One unit was to be built to be fully accessible for people in wheelchairs and the others were to be adaptable. 32 The parties filed amended conditions after the hearing as directed at the conclusion of proceedings. 33 Overall the Court has been satisfied that the amendments to the original proposal largely brought about by the objectors concerns, and the reports of the Court appointed experts, have resulted in a development that now has no matters sufficient for its refusal. Therefore the orders of the Court are: 1 The appeal is upheld. 2. Deferred commencement consent is granted for a SEPP 5 proposal for two attached and one detached dwelling suited to persons over 55 or those with a disability on Lot 15 DP30789 being No. 37 Horace Street, St Ives, as shown on Drawing Nos. 1 of 5 Issue A, 2 of 5 Issue C, 3 of 5 Issue D, 4 of 5 Issue D, all Job No. SHU 0401 all originally dated 20/10/03 by Patricia Vandenbruel Architect and landscape plan LOIA Job No. 03-006 by Patio Commercial and drainage plan No. SHU0301-00lA, Issue C by Cullen Grummitt and Roe Engineers all as amended by and built in accordance with the conditions in Annexure A hereto. 3. The exhibits are returned to the parties except Exhibits 1, 2, 5, 6, 7 and A. ________________________ K G Hoffman 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.