Land and Environment Court of New South Wales CITATION : Quay & Wakeling v Ku-ring-gai Council [2005] NSWLEC 456 APPLICANT Chen Quay and Jean Wakeling PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 10201 of 2005 CORAM: Brown C Development Application :- Construction of a dual occupancy dwelling - demolition of existing dwelling - impact on streetscape - character of the locality - solar access - impacts on neighbouring property. KEY ISSUES: Environmental Planning and Assessment Act 1979 Ku-ring-gai Local Environmental Plan 194 LEGISLATION CITED: Ku-ring-gai Planning Scheme Ordinance State Environmental Planning Policy No 53 DATES OF HEARING: 21/07/05 and 02/08/05 EX TEMPORE JUDGMENT DATE : 08/03/2005 APPLICANT Mr S. Kondilios, solicitor SOLICITORS Maddocks LEGAL REPRESENTATIVES: RESPONDENT Mr R. Graham, solicitor SOLICITORS Abbott Tout JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 3 August 2005 10201 of 2005 Chen Quay and Jean Wakeling v Ku-ring-gai Council JUDGMENT 1 This is an appeal against the refusal by Ku-ring-gai Council (the council) of Development Application 148/04 for the demolition of an existing dwelling and the construction of an attached dual occupancy development at No. 16 Havilah Road, Lindfield (the site). 2 The site and surrounding area was inspected on the morning of the first day of the hearing with representatives from both parties, the Court-appointed town planning expert, Ms Kerry Gordon and local residents. 3 The site consists of lot 17 in DP 650239 and is located at the intersection of Havilah Road and Nelson Road. It is generally rectangular in shape with a frontage of 18.9 m to Nelson Road and a frontage of 39.625 m to Havilah Road, giving a total site area of 718.135 sq m. 4 The site contains a single storey brick and tile dwelling, detached laundry and detached brick garage. The locality is predominantly single dwelling houses of one and two storey construction on varied lot sizes, although, recent amendments to the council's planning controls provide for a likely change in character to higher density development in parts of Havilah Road. 5 The proposed building will be of one and two storey construction. Dwelling 1 provides vehicle access from Nelson Road whereas Dwelling 2 provides vehicular access from Havilah Road. Both dwellings contain three bedrooms. 6 The site is zoned Residential 2(c2) to Ku-ring-gai Local Environmental Plan 1994 (LEP 194), although at time of lodgement of the development application the site was zoned Residential 2(b) under the Ku-ring-gai Planning Scheme Ordinance (the Ordinance). As the development application had not been determined prior to the coming into effect of LEP 194, the savings provisions in this planning instrument require that LEP 194 be considered as if it was a draft planning instrument. 7 Under the Residential 2(b) zoning, the principal planning instrument is State Environmental Planning Policy 53 - Metropolitan Residential Development (SEPP 53). SEPP 53 provides numerical requirements for allotment sizes, floor space ratio and car parking. There was no dispute that the proposed development satisfies these requirements. Clause 32 requires that consent must not be granted unless the consent authority is satisfied that adequate regard has been given to a number of design principles. The relevant design principles relate to streetscape, visual and acoustic privacy, solar access and design for climate. 8 The council's Dual Occupancy Development Control Code (the Code) applies to the development application to the point where it is not inconsistent with the requirements in SEPP 53. 9 Under LEP 194 and the 2(c2) zone, the proposed development would not be permissible, however I am not convinced that the form, scale and general appearance of the proposed development is that inconsistent with the form of development envisaged by LEP 194 that any significant weight should be given to LEP 194. Ms Gordon assesses the proposal against the relevant objectives of the 2(c2) zone and finds general consistency. I concur with this conclusion. 10 The council filed an Amended Statement of Issues containing six individual issues and particulars. These can be grouped into the following main areas. 1. whether the proposed development has an adverse impact on the streetscape and the character of the locality (Issues 1 and 2). 2. whether the proposed development provides adequate solar access to the private open space areas (Issue 3). 3. whether the proposed development unacceptably impacts on the amenity of the adjoining property at 26 Nelson Road (Issue 6). 11 The width of the garage for Dwelling 2 (Issue 4) and the adequacy of the information (Issue 5) are addressed through further details supplied by the applicant. 12 In relation to the streetscape and the character of the locality, Ms Gordon states that the two streets that make up the frontage to the site have different characters and consequently the proposed development should respond in different ways. The Nelson Road frontage is more significant in terms of heritage because of its association with adjoining dwellings to the north and an identified heritage item directly opposite. The Havilah Road frontage is not as significant as the Nelson Street frontage as the character is made up of larger and newer residential dwellings. Recent amendments in LEP 194 also provide for residential flat buildings up to five storeys in height on the opposite side of Havilah Road. 13 Ms Southwell, the council's town planner, states that the Havilah Road setback is inadequate and creates a dominating effect on the elevated corner site. 14 At the site view, the design and its relationship with the streetscape and character of the area was discussed and further amendments were proposed. This necessitated an adjournment of the proceedings for amended plans to be provided and considered. 15 The amendments provide for an increased roof pitch to match other dwellings in Nelson Road and a reorientation of the corner dwelling to provide a new entry. This gives this dwelling a greater presence in Nelson Road and provides a level of consistency with the existing dwellings. Other amendments were provided but did not have the same significance as the previously identified changes. While these changes did not totally accord with the amendments sought by Ms Gordon or Ms Southwell, I accept that they provide the necessary changes to make the proposal acceptable in the streetscape. 16 I note that the site falls within the National Trust Urban Conservation Area however there are no specific heritage requirements in the Ordinance or LEP 194, (apart from the need to consider the relationship with the nearby heritage item at No. 15 Havilah Road), that relate to the site or surrounding area. I am not convinced that the proposal, as amended, impacts to any significant degree on the National Trust Urban Conservation Area for a number of reasons. 17 The setback to Nelson Road is generally consistent with the adjoining properties and while the proposal is part two storeys, this part of the development is set well back from Nelson Street. The setback to Havilah Road varies from around 3.7 m to 6 m. It is clearly less than the adjoining property to the west, but the site is a corner lot and consistency with the adjoining property setback is not a realistic proposition in this case. I accept that it is satisfactory considering it is a corner lot. 18 The design involves the articulation of the building form along the Havilah Road elevation and is consistent with the existing and likely form of development in Havilah Road. Even though the site is elevated above the street level, this does not ,in my view, unacceptably add to its prominence. For these reasons I accept that adequate regard has been given to streetscape in accordance with cl 32(a) of SEPP 53. 19 Ms Gordon and Ms Southwell addressed the issue of solar access. Ms Southwell states that even though the areas of private open space do not satisfy the 100 sq m minimum in the Code, the area is not a matter that would warrant the refusal of the application. She states that the solar access to both private open space areas is inadequate and does not satisfy the Code requirement of 50% of the area between 9 am and 3 pm. SEPP 53 provides no specific standard but requires "adequate sunlight to substantial areas of private open space." Ms Gordon acknowledges that the solar access to the private open space areas does not satisfy the 50% requirement in the Code, but on a qualitative assessment concludes that the SEPP 53 requirement is met. 20 In balancing these opposing views, I am more inclined to agree with the conclusions of Ms Gordon. Her assessment reveals that both dwellings have usable areas of open space that achieve solar access in midwinter. These areas are located generally along the northern boundary of the dwellings and adjoining the living areas, and are of reasonably acceptable proportions. I note that the internal areas of the dwellings receive more than satisfactory levels of solar access. 21 In accepting Ms Gordon's evidence I am also mindful of the generous private open space areas provided for each dwelling, the orientation of the lot, the restriction on its ability to attract solar access because of an existing dwelling on its northern boundary and its lower level in relation to the existing dwelling. For these reasons I find that adequate regard has been given to solar access and design for climate as required by cl 32(c) of SEPP 53. 22 The issue of loss of privacy and overlooking to the property to the north was considered on site, and I accept that the amendments suggested by Ms Gordon together with other amendments to the design of the dwellings adequately address any potential concerns on this issue. Consequently, I find that adequate regard has been given to visual and acoustic privacy in accordance with cl 32(b) of SEPP 53. 23 Of the council's draft conditions, only condition 67 was in dispute. This condition requires a cash bond or bank guarantee to ensure the landscape works are completed and maintained. As this is a matter that can be addressed adequately and policed by the council without the need for a bond or bank guarantee, the condition can be deleted. I have also imposed the council's further condition requiring a skylight to bedroom 2 of Dwelling. 2. This was not opposed by the applicant. 24 For the foregoing reasons the orders of the Court are: 1. The appeal is upheld. 2. Development Application No. 148/04 for the demolition of an existing dwelling and the construction of an attached dual occupancy at No. 16 Havilah Rd, Lindfield is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits A, B and 4. ___________________ G T Brown 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.