Land and Environment Court of New South Wales CITATION : Mirvac Projects Ltd v Ku-ring-gai Council [2005] NSWLEC 504 APPLICANT Mirvac Projects Ltd PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 11510 of 2004 CORAM: Murrell C KEY ISSUES: Appeal :- application for 16 dwelling houses and alterations and additions to Glenwood House - streetscape - setbacks - character of the area Environmental Planning and Assessment Act LEGISLATION CITED: Ku-ring-gai Local Environmental Plan Development Control Plan No. 38 DATES OF HEARING: 05/08/05, 08/8/05, 09/08/2005 and 07/09/2005 EX TEMPORE JUDGMENT DATE : 09/07/2005 APPLICANT Mr C McEwen, SC SOLICITORS Mr M Driscoll of Coudert Brothers LEGAL REPRESENTATIVES: RESPONDENT Mr C Leggat, barrister SOLICITORS Mrs L Finn of Abbout Tout JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 7 September 2005 11510 of 2004 Mirvac Projects Pty Limited v Ku-ring-gai Council JUDGMENT 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act against Ku-ring-gai Council's refusal of a development application for the erection of 16 new dwellings and alterations and additions to the heritage item known as Glenwood House. The property is at No. 134-138 Eastern Road, Wahroonga. 2 By way of background a subdivision was approved by the council for an 18 lot community title development. There were amendments in a s 96 application for modification to the proposed subdivision which was approved by the Court in May of this year. This s 96 was a reconfiguration of lots. There was also an approval by the Court in terms of the earthworks and a s 96 application in respect of those. 3 The application before the Court today is for the erection of the dwellings. When the matter first came to the Court the council contested that there were a number of non-compliances with council's Development Control Plan No. 38, that is its residential DCP. In particular with respect to the setbacks from the internal road that is a lot within the community title. 4 The Court undertook an inspection with the parties for this development application to erect the dwellings and also heard evidence from objectors on the site. The Court in particular heard from Mr Brew, who is on the committee for the review of Development Control Plan No. 38, and also from Mr Parr. 5 The subject site is a large parcel of land in Wahroonga bounded by Burns Road to its north, and Eastern Road to its east. The property previously, as identified in other judgments by this Court, belonged to the Patrician Brothers. The land was subsequently purchased for a residential subdivision. The zoning of the subject site allows for erection of dwellings, and Council has adopted guidelines in its development control plan No 38 for dwelling houses. During the proceedings with the assistance of the experts, in particular Ms Lithgow of Council and Mr Burns, a consultant, and the architect, the Court has carefully assessed the proposed development in terms of the setback and footprint of the dwellings and the general fit of the subdivision with the proposed dwellings in terms of the estate itself and within the suburb of Wahroonga area. 6 The Court made a number of preliminary findings with respect to setbacks, and the applicant responded to the findings of the Court and amended plans have been submitted for consent. In respect of a number of the dwellings a greater setback has also required a redesign to a lesser or complete extent of some of the dwelling houses, and this has also been put forward in the amended plans to the Court. There is an amended landscape plan also that shows a number of canopy trees within the front setback areas of a number of the dwelling houses, that further reinforces the natural setting and vegetated leafy environment for the subject subdivision. 7 In my preliminary findings of 9th August 2005, I indicated that the Court considered that a number of the setbacks to the dwellings should be increased having regard to the character of the area and more particularly the built form and the presentation of the dwelling houses to the internal road. The Court has considered the importance of Glenwood House and there have been previous conditions in the earlier approvals pertaining to the subdivision to ensure that Glenwood House remains the focus which is the design philosophy for the estate. In this regard setbacks for a number of dwellings opposite were increased and setbacks at the end of the cul de sac, the bulb of the cul de sac, were also increased in the amended plans the Court has before it today. 8 For the record my verbal findings on the 9th August are repeated below: 1. I need to preface my comments by saying that the DCP cannot be ignored, that is the current DCP No. 38, and clearly it must be the focus and I must give genuine consideration to this document consistent with the findings in the judgment of Zhang v Canterbury. 2. I do believe that there are circumstances of this particular application that allow a variation of the building setbacks and I say that in the context of (a) it is an internal road, and I know that people have access to the internal road but it is an internal road and it will have clear identity in this regard. The setbacks to the perimeters of the site, that is Eastern Road, Burns Road, are what one would expect and the advantage of the tree canopy, the blue gum high forest community that occurs on the subject site, will ensure that the subject site continues to make an important contribution to the locality. 3. The dwellings have all been architecturally designed and in saying that that does not necessarily mean that therefore one can breach setbacks. But in terms of the street there will be a cohesiveness in terms of not only the landscaping but also this will be a low density residential area acknowledging that many of the dwellings are of a large size, but nonetheless there is no exceedance of council's development control plan in terms of the floor space ratio for any site and some dwellings are clearly well within or half of what the FSR would be permitted by the controls. As I said they will be large dwellings but they are all well designed. 4. At the same time I am of the opinion that there needs to be a contribution to the streetscape in terms of the setback for each of the dwellings. Each of the dwellings will be large, they will be within large landscaped settings and at the same time there needs to be an appropriate setback. In saying that, and because of the uniqueness of the site and as an integrated development with a coherency often not found in other streetscapes, there needs to be some greater setbacks provided. 5. I will also preface my comments by saying I have also looked at the controls in terms of Sch 9 of the KPSO, so I have not looked at this site in a vacuum or as an island but in the context of council's controls and the merits of this application. 6. Lot 4, which is the one on the corner of Eastern Road and the internal road, that clearly does not breach council's controls and, in fairness to council, council did not object to a number of the dwellings that are shown on the plans that the Court has before it. It also has its access off Eastern Road which assists in the streetscape of the internal road by no driveways before one is well into the estate. 7. Lot 5 is also considered to be appropriate and council did not object to Lot 5 in any event. Lot 6 is also one that council does not object to. 8. In terms of Lot 8 it is also generally consistent, there is a slight breach but in the streetscape it will not be noticeable and the setbacks for that total section do provide for adequate curtilage. 9. Also in my consideration of all of these setbacks I have had regard to Glenwood House, the heritage dwelling, and it has significant setbacks except to the internal road and to the internal road the garaging is some 1.5 m from the internal road but I am now satisfied with the additional sections and elevations that have been provided that it will be an appropriate fit and that the road levels together with then the levels of the dwelling opposite will be appropriate in the context of the street. 10. So that now does take me to Lot 9. Lot 9, the dwelling between Lots 2 and 3 but clearly it is one that has more of a direct relationship with Glenwood and the cross-section also shows that the dwelling itself would have a good relationship with the heritage building. I am of the opinion, that the footprint of this dwelling house does need to be changed such that the projection of the garage needs to be pushed back to the wall of the dwelling as such and for the additional space to be accommodated at the rear, it is not just a matter of pushing it back, I do understand that, because you would end up with a rather quaint little courtyard in the middle of two wings. But generally that is an issue that needs to be looked at in terms of the design of a dwelling for the site. Although it is not fatal to a future dwelling on the site, there may be an opportunity to manoeuvre an extra metre back as well for the southern portion of the dwelling. But it will be a matter for the applicant whether in fact this will result in a redesign of the dwelling as to what can be accommodated. I think the same floor space ratio can still be achieved by a reconfiguration of the dwelling. 11. I am looking at these dwellings having regard to the opposite side of the street as well and I am not just looking at them each individually in terms of setbacks, so that when one drives into the street there will be the leafiness of the north shore in terms of both exotic and native plantings. And the scale of the dwellings, as I said, in my opinion for the location in Wahroonga does necessitate reasonable setbacks for the entrance to these dwellings. 12. So I will move now to Lot 10, that is why I will be guided here in terms of some of my comments and that is why I will ask some feedback from the architect in this regards and/or the planners, if appropriate, as well. I think that the dwelling house on Lot 10, the garage or the dwelling, should be set back an additional 2 metres that is 9 metres from the front boundary. I have had a look at some of the contours and in some situations I notice that on the site slope constraint for Lot 10 there is an issue and it may require a decrease in the length of that rear projection of the dwelling and perhaps then some additional space gained elsewhere. That is a single storey projection at the rear. In fact this probably will be, in terms of council's controls, the one that complies and the reason why I think that particular dwelling needs to be set back is in the context of the dwellings opposite and the driveways. 13. Now I am going to go across the road to number 3. Number 3, the dwelling house respects the heritage building which is the most important part of this subdivision. The garage is 7.5 m in that location and I consider that this is appropriate in the circumstances because this particular site does have a number of constraints, in particular the importance of the view corridors to Glenwood House and setting back from the boundary to Glenwood House and the vegetation to Eastern Road and I consider that the streetscape would not be adversely impacted by that 7.5 m setback to the garage structure. 14. With respect to Lot 18, that has a 6 m setback and having regard to the constraints of the site in terms of the tree and revegetation area, and having regard to the provision to retain the trees on the street to the northern boundary of Lot 18, a 6 m setback in the circumstances here I also consider is appropriate which is one reason why I have said that there needs to be a greater setback to Lot 10 so there will be some balancing and complimentary contribution to the streetscape in that regard. Clearly the provision of that tree zone near the street is most important to the streetscape and one must have regard to that in reduced setbacks to other structures. 15. With respect to Lot 17, and I have actually drawn all the driveways on the one plan that I have here, when I look at the juxtaposition of the driveways for 15, 16 and 17 I am of the opinion that Lot 17 should also be set further back so that one achieves a 5.5 m setback to the garage, and that clearly is not a matter for me but I have looked at the logistics of moving these, a matter for the architect, but whether the one wing is moved or the total dwelling in terms of 17 is reconfigured. 16. Now I will move across to the other side of the road and I will leave the hardest one to last. I will move across the other side of the road and go to Lot 11. It may not sound very logical on the record but I hope I am doing it in a logical sequence. 17. Lot 11, that has a setback of 5 m to that front portion and that has a side driveway and in the circumstances, having regard to the trees in the streetscape here in that tree zone, the setback is 5 metres. I think if it could be pushed back 1 m to that retaining wall that would assist, or half a metre, but it would not be a significant amount that would interfere with the integrity of that dwelling. I do have concerns about a wall that would be proposed and that is one thing when on a careful reading of the plans looking at the various walls that are provided as well one must have regard to those and this has already been commented on that that should clearly only be half a wall with landscaping as opposed to having the appearance of bringing the built form forward by higher front fences. And I make that comment in respect of a couple of the dwelling houses where there are walls proposed when I have had a careful look at the plans, there is no point in having a larger setback if in fact you end up sticking a wall up in front of it. So that is Lot 11. 18. Now Lot 12. Lot 12 has a 4.5 m setback and generally there is space created, but then there is space created in the bulb end of the cul-de-sac and we do have the two driveways to 13 and 15, so whilst there is a feeling of space it is not the same as the rest of the streetscape. I think a minimum of 5 m whether that means you have to take half a metre out of the building, but I should have thought by looking at the plans that you would be able to push that back half a metre so that you achieve 5 metres. That also has the dual purpose of allowing someone to park in a driveway without any difficulties. 19. 13 and 14 there is no concern there. I just make the comment that clearly there needs to be a wide enough strip of landscaping on Lot 14 to soften the impact of that double driveway effect and I think that can be achieved, but that needs to be carefully looked at in the future landscape plan because it will appear as driveways all off the end of the cul-de-sac which is clearly not what is meant in terms of the philosophy. 20. Lot 15 there was no issue in that regard which brings me around to, as I said, the most difficult one which is Lot 16 and I do not consider that a 2 m setback is appropriate in this streetscape and in the wider context of the locality. Having looked at this one and not being the architect for the proposal, I do not think it assists by me saying how one could amend what is there. I think this is a case of perhaps going back to the drawing board for dwelling 16 and looking at providing a setback which would be commensurate with the adjoining setback that has now been amended to at least a 5 m setback in that location, I say this in the context of looking at the cul-de-sac, having regard to the street levels and the driveways serving lots 15, 16 and 17. And when I mark the driveways on a plan together with the pergola and the hard surfaced areas in that part of the cul-de-sac, there certainly is no feeling of space as such and bringing Lot 16, the dwelling, back to a 5 m point would assist in this regard. 21. I say this in the context of understanding the rationale of providing nearly every dwelling with a wonderful northern aspect and open space and in this regard the development has a great deal of merit and the amendments I have proposed I do not consider would interfere with the design integrity. 9 The estate is one that is to be developed as a cohesive whole and in this regard it is important that the relationship to the heritage item and between all the dwellings is considered rather than a slavish adherence to prescriptive controls. In my assessment I am satisfied the dwellings now as proposed are worthy of approval and in the circumstances variations to the setbacks provided for in the DCP are justified. This estate is to be developed as a whole and it will present as an integrated development with dwellings fronting an internal road. Furthermore the setbacks to the external boundaries are commensurate with other dwellings in the vicinity with frontage to Burns Road and eastern Road. I am satisfied the facts and merits of the application before are such that approval could not be seen as a precedent for variation to the DCP. 10 During the proceedings, there was assistance given to the Court to ensure that the ultimate design philosophy and the integrated nature of this community title subdivision is one that will reflect the values of the area generally in Wahroonga, and in particular this part of Wahroonga. The properties with frontages to Burns Road and Eastern Road contain very large dwellings, with appropriate curtilages and commensurately large sized allotments. The proposed subdivision will not be out of place with this character, and clearly the dwelling houses to be erected on the subject lots will be large dwellings, in an appropriate landscaped setting with canopy trees to reinforce the existing character of the area. 11 There are very important and significant trees that are to be retained on the subject site and there are further plantings proposed of both native and exotic species, not uncommon to Wahroonga, where there are many exemplary gardens with exotic and native trees. The street planting theme for the subdivision is magnolias. This is to complement the significant high gums, which surround the subject site, either on the site itself or within other native reserve areas. 12 Before I go to the conditions I should state that two State Environmental Planning Policy No. 1 objections were submitted. In respect of the dwelling houses on the subject lots the SEPP 1 objection relates to a number of the lots which are below the minimum of 929 sq m, as contained in the Ku-ring-gai Planning Scheme Ordinance, and the other SEPP 1 objection is in respect to the width of two access handles being less than the 4.5 being 4 m to the battleaxe allotments. The Court has had regard to the objectives of the standards and I am satisfied, and I agree with the council, that the proposed modifications or amendments to the standards are ones that require a SEPP 1 objection, but I agree with the council also that in the circumstances of the case the SEPP 1 objections are well founded and should be allowed. They satisfy the provisions of the objectives of the standards, and also promote the objects under Pt 5 of the Environmental Planning and Assessment Act. 13 On my merits assessment having regard to the provisions of the Ku-ring-gai Planning Scheme Ordinance, that provides specific objectives for land zoned for residential - dwelling houses, including: a reasonable level of sunlight to neighbours; dwelling houses sited and designed to minimise overlooking; development shall maintain or encourage replacement of tree cover whenever possible to ensure the predominant landscape quality of the municipality is maintained and enhanced; any building and development on the site avoid total or near total site utilisation, by maintaining a reasonable proportion of the site as soft landscaping area; and all new dwelling houses et cetera, are of a height, bulk and scale generally in keeping with neighbouring properties, and where larger buildings are proposed, designed so as not to dominate, but to harmonise with the neighbouring development, and all reasonable dwellings provide reasonable space on the site for the forward entrance. And having regard to the specific objectives of sch 9 in the LEP, I am satisfied that the proposed dwelling houses on the approved subject lots will present a compatible and harmonious form to what is the general character and nature of the Wahroonga area. 14 The applicant and the council have generally agreed on the conditions. There are only a few remaining conditions that are in dispute, and one of these relates to the hours of work. Council presses that the hours of work for the erection of the dwelling houses should be within the hours of 8am to 12 noon on Sundays and public holidays. The applicant argues that limiting the hours to 12 noon on a Saturday would lead to and unproductive work day, and in the circumstances having regard to the fact that the property is relatively isolated, that a 2 o'clock finishing time on Saturdays should be allowed. 15 The Court inquired as to what would be the likely timeframe. Clearly the Court cannot impose a condition to ensure construction is completed within a certain timeframe. The applicant has indicated it would accept a condition whereby the hours to 2pm on a Saturday is for a period of 18 months from the commencement of construction of the first dwelling house. In the circumstances of the case, having regard to the fact that the site is somewhat buffered, or isolated from other dwelling houses, but at the same time recognising concerns of residents with construction work on a weekend, or Saturday afternoon, I consider that the 18-month timeframe from the commencement of construction is appropriate. This recognises the applicant's needs and also gives some certainty to the residents in terms of the time frame for disturbance on a Saturday afternoon for the two hours. 16 With respect to the other conditions, the only other ones are 45, 46 and 64 that at the end of the day remained in dispute and these relate to the tree bond and landscaping. Forty-five relates specifically to a cash bond or guarantee of $36,000. That is for the future landscaping of each of the allotments. And once again there is a condition handed up to me requiring the maintenance of the landscaping in accordance with the landscape plan to be finally approved. And as such that would also in my assessment be the appropriate mechanism for the landscape bond condition not to be imposed, but instead to ensure that the landscaping is implemented. As noted in previous judgments in this Court there are other mechanisms where conditions of development consents are not complied with for action to be taken. Whether that be in respect of significant trees which are identified to be retained on sites or in terms of future landscaping works on site. Therefore the bonds in the circumstances having regard to more appropriate conditions that have now been formulated do not appear to be necessary and will not be imposed. 17 There has recently been a judgment in this Court Falcomata v Ku-ring-gai Council, a judgment of Commissioner Moore, contains principles for landscaping, and also makes reference to whether in fact landscape bonds are appropriate. In that judgment Commissioner Moore states that s 80A, subs 6 of the Act does not allow the imposition of a bond on private lands as such. The council argues that the purpose of that condition is not necessarily one that needs to only be confined to a consideration under s 80A(6), but also in terms of the Newbury principle and s 79C, a general assessment of the development application. 18 The Newbury test provides for three criteria to be satisfied. That is: is the condition acceptable and for a planning purpose; does it reasonably relate to the development, and its reasonableness. The condition for the bond is one that as framed in the council's conditions, there was an amendment just prior to giving judgment of that condition, the essence of that condition. However, or the underlying motive for that condition, however, does appear to be one that is in the form of imposing a penalty. And as such I do not consider it appropriate to impose a bond or bank guarantee to the tune of $100,000. The council has stated that it could use $3,500 for any tree that may die, so that it can be replaced. 19 It seems to me a reasonable, and a common sense approach in terms of the ultimate outcomes of development and in terms of ensuring ESD principles are furthered, that it would be more appropriate to impose a condition that requires for any trees that are declining or dying and require removal, then a replacement canopy tree of the same species for all of those that were identified by council as being significant, must be planted and nurtured to the point where they then would come under council's tree preservation order. 20 All other conditions contained in Exhibit X are agreed to by the applicant, and the council. 21 Therefore on my overall assessment of the 16 dwelling houses to be erected, together with their contribution to Glenwood House being the focus of the subdivision, I am satisfied that the proposed development of the community title lots with the dwelling houses, and the alterations and additions to the heritage house is one that should be supported, and the appeal should be upheld. 22 Therefore the orders of the Court are: 1. The appeal in respect of the development application for the erection of 16 dwellings and the alterations and additions to Glenwood House is upheld. 2. The development application as shown in exhibits B, U, W, and Y is approved, subject to the conditions contained in Annexure 'A', and 3. The exhibits are returned with the exception of exhibits 11, 13, B, U, V, W, X and Y. ___________________ J S Murrell 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.