Land and Environment Court of New South Wales CITATION : Wilden-Constantin & Anor v Ku-ring-gai Municipal Council [2004] NSWLEC 429 FIRST APPLICANT V Wilden-Constantin PARTIES : SECOND APPLICANT A Campos RESPONDENT Ku-ring-gai Municipal Council FILE NUMBER(S) : 10955 of 2003 CORAM: Moore C Development Application :- KEY ISSUES: Small allotment Need to design to context of site . Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Ku-ring-gai Planning Scheme Ordinance State Environmental Planning Policy No 1 . Zhang v Canterbury City Council (2001) 115 LGERA 373; CASES CITED: Manzie v Willoughby City Council 96 LEC 26; . DATES OF HEARING: 28 and 29 June 2004 EX TEMPORE 06/29/2004 JUDGMENT DATE : APPLICANT Mr C McEwen, barrister LEGAL REPRESENTATIVES: RESPONDENT Mr P Rigg, solicitor Deacons JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Moore C 29 June 2004 10955 of 2003 V Wilden-Constantin & A Campos v Ku-ring-gai Council JUDGMENT 1 COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning & Assessment Act against the refusal by Ku-ring-gai Municipal Council (the council) of Development Application 292 of 2002, which was lodged on 8 March 2002. It is an application for the erection of a freestanding dwelling at 8 Valley Park Crescent, North Turramurra. The site is Lot 1 in DP 107347. The proposal is for the erection of a 2 storey, 3 bedroom house. Also on the second storey is a games room and study and a western facing verandah. Part of the design includes a double garage facing to Valley Park Crescent which is proposed to have a 3.9 m high ceiling but with a door substantially below that height with infill panels above the door. 2 The application was determined by the council by refusal on 11 August 2003. The allotment is approximately 386 sq m. The Ku-ring-gai Planning Scheme Ordinance (the Ordinance) contains in cl 43 the minimum house lot sizes in the various zones. The site is zoned 2C. Cl 43(3)(a) provides that: A dwelling house shall not be erected in zone 2C on any allotment which has an area of less than 929 sq m. 3 As a consequence, in these proceedings, an objection pursuant to State Environmental Planning Policy No 1 (SEPP 1) is required to be sustained if I were to otherwise be satisfied that the dwelling should be approved. I note that such an objection was lodged with the council dated 19 May 2004 by the consultant planners acting on behalf of the applicant. 4 During the course of the proceedings, I put to the parties that, in light of the peculiar history of the creation of the site, if I considered that the present house design was appropriate on its merits then it would be appropriate for me to uphold the SEPP 1 objection. I note in the statement of evidence of Ms Deborah Laidlaw, the consultant planner who gave evidence on behalf of the council that, at p 21, 7.2, she says: Given the history of the creation of the lot I believe that a SEPP1 by implication objection for an appropriate form of residential development on this site could be supported. 5 I have proceeded on the basis in considering this matter that if I concluded that the dwelling were an appropriate design then I ought sustain the SEPP 1 objection. As a consequence, I consider it necessary and appropriate to set out some of the history leading up to the subdivision which created the allotment. 6 I do so because it was created as a result of a decision of the former Senior Commissioner of this Court in matter 10569 of 1997 in a decision given on 16 March 1998, a decision which is not one presently reported. 7 As a consequence, setting out what are the relevant portions of the former Senior Commissioner's decision is desirable in order to provide an appropriate context for those who might read this decision at some later time. 8 I first quote from page 1 of the Senior Commissioner's decision where he says: It is appropriate to say that this application proceeds from, what I would describe as, an antediluvian provision of the Ku-ring-gai Planning Scheme Ordinance which allows land to be subdivided without the associated form of future use being dealt with concurrently. This prospectively allows a situation where the physical arrangements and ownership can change, and then at some later time, the question of use and the acceptability of built form be dealt with as separate issues. I have grave reservations about that approach, but it seems to me that the structure of this instrument compels me to accept it as the basis upon which the Court proceeds. In this present matter, though in principle use and future building can be effectively set to one side, it seems to me it would be both naive and improper exercise of the Court's function to ignore the high probability that an application will ultimately be made for a future house. Conversely it appears to me that, in the absence of a specific application for a house, it would be improper to assess the question of whether or not a house application is likely to be successful in the future, is a basis for deciding whether or not the land should be subdivided. In this context, the fact that the resultant lots would need the assistance of an SEPP 1 objection to be useable, adds an element of uncertainty which again mitigates against considering the potential fate of an application to build. In the ultimate, it seems to me that the proper approach involves an acknowledgment of the probability of an application for a new dwelling, coupled with an appraisal of the physical and planning implications of a smaller lot and separate ownership. In doing that, it appears to me that there are probably three connected headings under which I should consider this proposition. 9 The Senior Commissioner then set out those headings. He continued on p 3 of his judgment to say: With regard to lot 1, it is clear from the drawings that it is nearly square and in terms other than necessarily Ku-ring-gai's Statutory and Planning Controls, certainly appears to the Court large enough to accommodate a house. Again, one has to say that that would be subject to future application and approval of council, bearing in mind the need for an SEPP 1 objection to be sustained. 10 He continued at the foot of that page: It appears to the Court that, as presently structured, the Ku-ring-gai Planning Scheme Ordinance provides for a two-step approach to subdivision and subsequent development. In that context, control of subsequent development lies entirely in the council's hands or with the Court if a dispute were to arise. Indeed it seems to me that in the context of this matter, it is only when one starts to consider the possibility or probability of a future application for a house that there can be any cause for concern or anything that would suggest that what is to be done is not acceptable. 11 He then, critically, went on to say: In this context I should emphasise, if it is not already clear from what I have been saying during the course of the proceedings, that I do not accept that a house application on this site is necessarily a fait accompli in terms of achieving a consent. There are hurdles to be overcome and a proper appraisal is necessary. Clearly the land is too small for residential purposes under the Ku-ring-gai Planning Scheme Ordinance and the SEPP objection would need to be sustained on its conventional terms. 12 Although, in these proceedings, the council filed a formal Amended Statement of Issues, the issues fall, in reality, to be dealt with under three separate headings only. The first is whether the proposed development presents satisfactorily to the 2 street frontages which it has. The second is whether the impact on the residents at 266 Bobbin Head Road, being the residence to the east, is acceptable and the third is whether the impact on the residents at 10 Valley Park Crescent, being the residence immediately to the south, is acceptable. 13 The summary of the evidence given by Ms Laidlaw is, effectively, that the proposed design is a box with inadequate setbacks which does not respect the relationships in all 3 of these elements. 14 On the other hand Mr Le Bas, the planning consultant who gave evidence on behalf of the applicants, indicated that he supported the proposition as a consequence of it being an adequate design in response to a small allotment in its present location. 15 Of the particular elements that I have earlier alluded to in the structure, Mr Le Bas gave evidence that any concerns that might exist in a purely hypothetical sense as a consequence of the height of the garage should be disregarded as it was his expert opinion that a view of the garage from Valley Park Crescent would lead to that impact being absorbed into the bulk of the house which is located behind it. 16 I indicated to Mr C McEwen, counsel for the applicant, that if I had come to the conclusion that the sole reason for refusal was the inadequacy of the garage then (subject to appropriate arrangements as to meeting any additional assessment costs for the Council) I would be minded to grant him an adjournment to enable the plans to be revised. I do not consider that the garage on its own would constitute any ground for refusal. 17 A significant element of the proceedings arises between the tension between the Development Control Plan called The Good Design Manual which is the Development Control Plan adopted by the council on 2 December 1997, and the Ku-ring-gai Residential Design Manual which is Development Control Plan No. 38 which came into operation on 4 February 2002. The application was lodged, as earlier noted, in March 2002. A question arose in consideration in these proceedings as to which of these documents I should use for the purposes of complying with the decision of the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373 in undertaking this assessment. 18 In considering this, I have had regard to a letter written by the Manager, Development Control, of the council to the designer of the project dated 12 February 2002 in which it is made clear that consideration, although there be no formal transition period from the old development control plan to the new, would be given by way of indulgence to those plans lodged very shortly after the new development control plan came into effect. I therefore consider that it would be appropriate, given the highly unusual circumstances of the nature of the creation of the allotment, that I should assess this application using the Ordinance coupled with the provisions of the old development control plan. 19 Mr P Rigg, solicitor for the council, suggests that the proposal is in conflict with a number of the provisions contained in Schedule 9 of the Ordinance. The schedule sets out the aims and objectives for the residential zones created under the Ordinance. The first clause contains a number of general aims and the second clause contains a number of specific objectives. 20 In the present proceedings, Mr Rigg submits to me that I should conclude that the proposal does not satisfy the second of the general aims, nor does it satisfy the first, fourth, fifth and sixth of the specific objectives. 21 I commenced by indicating that the first of the specific objectives that Mr Rigg took me to relates to solar access to neighbouring dwellings. Although the residents to the south raised specific concerns with respect to solar access, it was the agreed evidence of the planning witnesses that the impact on the solar access to the neighbouring property to the south would not provide sufficient impact to warrant refusal. I am satisfied, from what I saw on the view, that this is the correct position - however, the impact is an aspect of my consideration of the overall appropriateness of the design but is certainly not determinative. 22 I am satisfied that the primary matters that I should have regard to are the second aim of the schedule and to the fifth of the objectives. This says particularly that new dwelling houses should be designed so as not to dominate and so far as possible to harmonise with neighbouring development. This fits in with matters that are contained in 4.1.1 of the old development control plan which refers to development conserving and enhancing the visual character of the street within which it is to be located and of 4.1.4 which refers in general terms to the maintenance of or enhancing of the amenity of neighbouring properties. 23 Essentially, in various fashions, each of the four faces of the proposed development are called in aid by the council as supporting, if not separately warranting, refusal. The two which are put to me as determinative are those of the relationship with the neighbours to the east and the south. However, Ms Laidlaw made the appropriate concession that the application should be viewed in the context of her broad conclusion that a 2 storey development, a subject to which I will return later in the judgment, would be appropriate if it were what she described as rooms in the roof or at least reflected as some partial treatment of this nature in a style broadly similar to that at 264 Bobbin Head Road. It is important to note that Ms Laidlaw's evidence does not reject there being a 2 storey element to the proposal. 24 The proposed height of the building is consistent with cl 46(2) of the Ordinance which provides that no dwelling house shall be erected which has a height in excess of 8 m to the underside of the ceiling on the top most floor. Mr Rigg submits that it would be appropriate for me to conclude that there should be a reduction in the second storey platform or some rooms in the roof treatment rather than submitting that a two storey development would be entirely out of context – although he did put it as being out of context with the eastern side of the streetscape within which it is located and thus warranting, whilst not determinative, being regarded as part of the reasons why I should refuse the development. 25 I turn first to consider the northern element. The northern elevation of the site faces directly across the street to a car park which is at the rear of the commercial premises known as the North Turramurra Shopping Centre. The presentation to the streetscape, which slopes towards the west, should be read with 266 Bobbin Head Road on the same side as the proposed dwelling. It was Ms Laidlaw's evidence that a 2 storey treatment having some presentation to this street would be acceptable but that she considered that it needed to be pulled forward for a variety of reasons including opening the view from 266 Bobbin Head Road. 26 I am satisfied that, although when viewed from the street, there might be some discontinuity and minor disharmony between the development proposed on the site and the dwelling at 266 Bobbin Head Road (which, whilst not heritage listed, it is accepted by the parties as being of some heritage significance) this is not sufficient to warrant refusal and nor should it, in my view, contribute to a refusal. 27 With respect to the western elevation, the particular difficulty that relates to this elevation is the presentation of the garage to the street. The remaining elements along Valley Park Crescent are essentially single storey dwellings, although there is some garaging presenting to the street. The garage structure of the proposed dwelling is further forward than anything else which was observed in the street, and despite Mr Le Bas' view that it would be absorbed within the view of the remainder of the building's presentation, I accept the view expressed by Ms Laidlaw in her evidence that at a total height of 6.15 m that the design of the garage is odd. It is odd because there is proposed to be a height of the ceiling which is significantly in excess of 3 m with a large infill panel above a more conventionally heighted door. However, I am not satisfied that this is other than jarring in its context and would not be an appropriate basis on its own to warrant refusal. 28 It leads me to the two critical matters. These, in my view, are the relationships between 266 Bobbin Head Road and 10 Valley Park Crescent with the site. The two relevant aspects arise from cl.s 1(b) and 2(e) of Schedule 9 of the Ordinance. In this regard, I note that the plans that were in evidence were incorrect with their notation as to the locations of the adjacent properties at 266 Bobbin Head Road and 10 Valley Park Crescent, but I also note the joint evidence of Ms Laidlaw and Mr Le Bas that these inaccuracies were not such as to be substantial or between them to require me to have any caution when reaching conclusions based on the plans as presently before the Court. 29 Mr Le Bas' evidence was that the built upon area of the site was approximately 50% and that this compared otherwise favourably with standards that might be applied, however derived, as being 60%. However, it is not so much the calculations in this regard that are critical with respect to the impact on 266 Bobbin Head Road - these impacts arise from the fact that there is an 11.5 m unarticulated and largely unrelieved wall along the eastern side of the proposal which is located in close proximity to the rear boundary of 266 Bobbin Head Road. I note that the current Development Control Plan would require some stepping and would restrict the length of an unarticulated wall to 8 m. In reaching my conclusions about this wall, I have not regarded these as being appropriate standards to apply but I have considered the matters from the general planning acceptability of such a length of wall at the location which is proposed. 30 Ms Laidlaw, in her statement of evidence at 6.10, notes that there might be some concessions given the nature of the size of the lot but in that regard she says that there should be some reduction of the impact at the upper level. The dominance of the presentation to 266 Bobbin Head Road is exacerbated by the pitched roof proposed and which was observed by me in company of the parties during the course of the site inspection as a consequence of a height pole erected on the site. 31 Although Mr McEwen submitted that the private open space and pool areas of 266 Bobbin Head Road would not conflict with the window of bedroom three on the proposal, as a consequence of the applicants' accepting of it being conditioned to be obscure glazing, this is not the critical position with respect to 266 Bobbin Head Road. 32 The principal and insurmountable difficulty for the present design is the unrelieved length of wall with a dominating roof structure above it. That the second storey is not set back from the ground floor element, nor subsumed in a rooms in the roof design, as with 264 Bobbin Head Road, is the dominant and fatal flaw for the proposal - despite Mr Le Bas' view that it is acceptable. 33 Had there been an opportunity for greater separation of the second storey level, coupled with a greater landscaping opportunity on the boundary, the proposal might perhaps have stumbled across the line but as it now is it does and cannot do so. Without further elaboration of detail, the same criticism is advanced by the Council with respect to 10 Valley Park Crescent. 34 During the period immediately after the on site view, in company with the parties, I undertook an external inspection of a development at 137 Bobbin Head Road which particularly with respect to the new western dwelling on that site which was prayed in aid by the applicant as having a consistent relationship to that proposed on the present site with the building immediately to the south of 137 Bobbin Head Road. Although each matter should be dealt with on its own facts, this site might have some broad relevance in the present context, but it is, however, as Ms Laidlaw observed, substantially a presentation of the rear of a building to the side elements of the building to the south and the side elements of the building to the south comprise a garage and driveway as distinct to being a significant portion (and, on the evidence of the residents, a highly used portion) of the private open space of the dwelling at 10 Valley Park Crescent. Therefore, the weight which I should give to my view of the premises at 137 Bobbin Head Road is slight. 35 I return to the decision of the former Senior Commissioner at pages 1 and 4 when he noted on page 1 that he was compelled to follow a particular path in his view with respect to the subdivision application, and at page 4 where he noted that he did not accept that a house application on the site is necessarily a fait accompli in terms of achieving a consent. In this regard, the applicant has accepted proposed condition 42 (although Mr McEwen submitted that it was not necessary) which would require fixed obscure glazing to a height of 1.6 m above floor level in the southern window of bedroom 1, that being a bedroom on 10 Valley Park Crescent side of the house and to the window of bedroom 3 which faces 266 Bobbin Head Road and to the various wet room windows at that level. Although bedroom 1, the master bedroom, has a further window which faces to the west which would provide substantial and adequate natural light to the room, the glazing that is required to the bedroom 3 window is such that it would provide minimal ventilation and natural light to that room through such of the window elements as would be more than 1.6 m above the floor. 36 However, the necessity for these treatments is a classic symptom of the problem of this proposal which, unfortunately for the applicants, is an attempt to shoehorn a standard style of development on to an allotment which requires specific consideration to respect the neighbouring houses as a consequence of the unusual nature of the creation of the site. 37 I have therefore concluded the following: 1. A house is acceptable on the allotment; 2. A 2 storey element would be acceptable; 3. The present design however does not respect the aspects of the neighbours of 266 Bobbin Head Road and 10 Valley Park Crescent; 4. The impact on the property at 266 Bobbin Head Road, is sufficient in itself to warrant refusal; and 5. The impact on 10 Valley Park Crescent in its present form is also significant and coupled with the presentation of the garage to Valley Park Crescent would warrant refusal. 38 As a consequence of what emerged in the course of the proceedings I have considered whether I should provide further detailed comments that might assist the parties in further discussions, having concluded that the appeal should otherwise be dismissed. However, I consider that it would not be appropriate to do so: see Manzie v Willoughby City Council 96 LEC 26. 39 The orders of the Court therefore are: 1. The appeal is dismissed 2. Development Application 292 of 2002 for the erection of a dwelling at 8 Valley Park Crescent, North Turramurra, (being Lot 1 DP 1007347) is determined by the refusal of development consent; and 3. The exhibits are returned. Tim Moore Commissioner of the Court 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.