Land and Environment Court of New South Wales CITATION : Red Sea Investments Pty Limited v Ku-ring-gai Council [2005] NSWLEC 380 APPLICANT Red Sea Investments Pty Limited PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 10387 of 2005 CORAM: Moore C Development Application :- Compliance with draft DCP KEY ISSUES: SEPP 1 objection . Environmental Planning and Assessment Act 1979 Ku-ring-gai Planning Scheme Ordinance LEGISLATION CITED: Development Control Plan 55 - Ku-ring-gai Multi-Unit Housing Development Control Plan 40 - Waste Management . Project Venture Developments v Pittwater Council [2005] NSWLEC 191; Stockland Developments v Manly Council [2004] 136 LGERA 254; CASES CITED: Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] 129 LGERA 195; Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46; . DATES OF HEARING: 5 July 2005 EX TEMPORE JUDGMENT DATE : 07/05/2005 APPLICANT Ms A Pearman, barrister INSTRUCTED BY LEGAL REPRESENTATIVES: D G Briggs and Associates RESPONDENT Mr P Marincowitz, solicitor Phillips Fox JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE C 5 July 2005 05/10387 Red Sea Investments Pty Limited v Ku-ring-gai Council This decision was given as an extemporaneous decision at an on-site hearing. It has been revised and edited prior to publication. JUDGMENT 1 Commissioner: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Ku-ring-gai Council (the council) of a development application for the erection of a four-storey residential apartment block to be located on 2A and 2B Killara Avenue, Killara (the site). 2 It is proposed that the structure would contain 18 residential units with a total of 27 parking spaces in a basement car park. Those car parking spaces are to be provided as 24 residence spaces and 3 visitor spaces. Vehicle access to the site is to be via a driveway from Killara Avenue along the eastern boundary of the site. 3 The site is on the corner of Killara Avenue and Pacific Highway on the northeastern side of the highway and the northern side of the intersection. 4 The bulk of the frontage of the site to Killara Avenue is ~ 2 m above the pavement level of Killara Avenue. 5 A number of matters were raised by the council in its formal Statement of Issues. However, several of them went away during the course of the hearing or beforehand. 6 I note that matters relating to the impact on a significant tree (being a Sydney Blue Gum) were resolved during the course of the hearing as a consequences of evidence given by Ms C McKenzie, the principal of the firm of consulting arborists who were providing advice to the applicant. 7 The issues of residential amenity of the proposed development and inadequate information with respect to the proposed development have also been resolved prior to or during the course of the hearing. 8 There are, in effect, two substantive matters that are put by the council as warranting the refusal of the application. 9 One is a series of non-compliances with Development Control Plan 55 – Ku-ring-gai Multi-Unit Housing (the Development Control Plan) which deals with multi-unit housing in a corridor either along the railway line and Pacific Highway or in the St Ives centre. 10 The site is within that railway/highway corridor and is zoned 2(d3). The proposal is permissible with consent in the zone. 11 Of some import in these proceedings is the fact that the council adopted the Development Control Plan in its final form on 14 December 2004 and it came into effect from 22 December 2004. The present application was lodged with the council on 14 December 2004. 12 There are three critical numerical elements contained in the Development Control Plan that are breached by the proposal. They relate to: o the floor space ratio (FSR); o setbacks from the various boundaries; and o the length of the building in its presentation to Killara Avenue. 13 With respect to FSR, it has been properly conceded on behalf of the council that the 1:1 FSR presently embodied in the Development Control Plan was preceded by a less prescriptive requirement with which the proposal complies. The 1:1 FSR requirement was inserted for the first time in the draft Development Control Plan on 23 November 2004 with the less prescriptive provision included from the first display of the draft Development Control Plan on 27 July 2004. I therefore do not consider that I should give any weight to the noncompliance of floor space ratio requirement as finally embodied in the Development Control Plan as the applicant was never put on any reasonable notice of this requirement. 14 With respect to setbacks from the boundaries, the version which was finally adopted was inserted on 23 November 2004, and superseded earlier setbacks contained in the 27 July 2004 draft which had requirements that were more prescriptive than those which presently apply. 15 It was put by Ms Pearman, counsel on behalf of the applicant, that these would lead to a result necessarily inconsistent with the relevant requirements contained in the Ku-ring-gai Planning Scheme Ordinance (the KPSO) as amended by Local Environment Plan 194 (the LEP) which imported the numerical provisions that relate to the site, particularly the one which related to the site coverage which is permitted. 16 However, cl 1.4 of the Development Control Plan provides that the Development Control Plan is to compliment the statutory requirements of the KPSO but, in the case of any inconsistency, the provisions of the KPSO shall prevail. 17 I am satisfied that compliance with the setback requirements contained in the Development Control Plan would lead to an inconsistency with the provisions of cl 25I(6) of the KPSO in that the maximum site coverage of 35% would not capable of achievement on the site if the setbacks in the Development Control Plan were complied with. I am also satisfied from the view and the resident evidence that there are no adverse impacts of these non-compliances. As a consequence, I am not prepared to refuse or require modification to the application on the basis of non compliance with the setbacks. 18 The third element of the Development Control Plan is the element relating to the length of the building in its presentation to Killara Avenue. 19 Cl 4.4, Built Form and Articulation, of the Development Control Plan sets out a number of design objectives and number of design controls derived therefrom. Control C3 states that the width of a single building on any elevation facing the street should not exceed 36 m and it provides an explanation, in control C4, as to what tests should be applied if an applicant seeks to justify a building of greater than that length. These say that a building in excess of 36 m shall be sufficiently recessed and/or articulated so as to present to the street as a separate building with that requirement applying to that portion of the building which is in excess of the 36 m requirement. 20 The present building proposal would have a 47 m presentation to Killara Avenue. The presentation to Killara Avenue is raised in a number of objections by residents from whom I have heard today. 21 This is a matter where there is no inconsistency between the Development Control Plan and the KPSO. There is no provision in the KPSO that would mandate or prohibit the council imposing the requirement in control C3 of cl 4.4 of the Development Control Plan. 22 It therefore becomes a matter of some concern as to what weight (if any) I should give to this provision of the Development Control Plan. 23 The provision relating to building length was included in the draft Development Control Plan that went on display on 27 July 2004, and remained (on a comparison between the draft plan which was on display on 27 July and the form of the plan as made) in essentially unaltered terms. 24 It is put to me on behalf of the applicant that the applicant should not be required to have had regard to this provision because there was no either imminence or certainty as to the making of a Development Control Plan which might embody the particular provisions that are now relied upon by the council. 25 However, evidence was given in the proceedings by the project's architect as to the instructions he had been given concerning the regard (or lack thereof) that he should have to the proposed Development Control Plan. Those instructions, he conceded, were given to him quite early in the design process of the building which took place from approximately August 2004, shortly after the Development Control Plan went on display in its original form. 26 He acknowledged that he was aware of the draft Development Control Plan early on and had been given specific instructions to ignore it. 27 The particular provision of the Development Control Plan relating to the presentation of the building to Killara Avenue is one which appears capable of satisfaction without compromising the economic yields sought by the applicant from the site. There is, therefore, no good reason for the applicant's design to ignore it. 28 The evidence which has been given to me by the applicant's architect concerning the presentation of the building to Killara Avenue is that it is, in his opinion, well articulated and modulated with sufficient differentiation between the eastern and western elements – in part, because of the recessing between those two elements and, in part, because of the stairwells being in front of the main face plane of those two elements. 29 He also advanced a number of other reasons (including colouring, shading and use of materials) why the proposal should be read by a casual observer as being two separate elements to the building and that, as a consequence of that, I should conclude that the building would be read as two buildings and thus that control C4 of 4.4 of the Development Control Plan had been satisfied. 30 I do not consider that this is the case. I reach this conclusion for the following reasons. As I have indicated, the site is a little over 2 m above the pavement level of Killara Avenue. Although there is significant landscaping existing and proposed both on and in the vicinity of site in the streetscape (indeed landscaping that is considered by the council as being adequate), the site is nonetheless one which is prominent in its local surroundings. Any four storey building on it will also necessarily be prominent. 31 The presentation of a building which is in effect to the built to its maximum development yield on the site means that it must be built in a fashion which is particularly responsive to the site and compatible with it. I was taken to a decision of Roseth SC in Project Venture Developments v Pittwater Council [2005] NSWLEC 191, where the Senior Commissioner said that, although compatibility is different from sameness, it is generally accepted that buildings can exist in harmony without having the same density or scale or appearance although, as the differences in these attributes increases, harmony becomes more difficult to achieve. 32 I am satisfied that a building of 4 storeys, consistent with the various relevant numerical controls, should be capable of being built on the site. 33 Indeed, I am satisfied that one which was generally to the effect of that proposed by the applicant is similarly capable of construction on the site, however, it must comply with what one might regard as general planning principles arising out of s 79C including consideration of matters of the public interest. 34 Although, I have been taken to a number of references in the decision of McClellan in Stockland Developments v Manly Council [2004] 136 LGERA 254 at para 87 and onwards as to what weight (if any) I should give to the Development Control Plan, I am satisfied that two things arise in the present context. 35 The first is that I am entitled to have regard to matters in the broad public interest that go beyond merely the terms of Environmental Planning Instruments and documents – whether draft or otherwise. That is a principle that arises from the reasons of Mason P in para 81 of the decision of the Court of Appeal in Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] 129 LGERA 195. 36 Secondly, McClellan CJ did set out, in Stockland Developments, a number of considerations which relate to policies of councils and their adoption through a public consultation process. There is absolutely no doubt in the material that is in evidence before me that an appropriate significant public consultation process went into the creation of the Development Control Plan. The particular provision that relates to length of buildings is capable of being departed from as specifically acknowledged in the Development Control Plan. Had some further thought, in my view, gone into the design of the presentation of the proposed building, it is possible that a building of 47 m in length could have been designed in an acceptable fashion by, for example, breaking the structure at the uper level(s). This design has not provided adequate differentiation to satisfy control C4 and thus fails control C3. 37 During the course of the day I raised, on an entirely without prejudice and without concluded view basis, a number of matters relating to that issue for consideration by the parties in case there was some possibility of discussions between the parties resolving the issues that stood between them. 38 The parties separately considered the matters and, as a consequence of the council's position, there was no point in me suggesting there be discussions between the parties. 39 Had this been the sole matter that stood between the applicant and an approval, I would have indicated that I was prepared to adjourn the matter for a period time to enable the applicant to develop some modifications to the plans that might have addressed that issue and to have those assessed by the council with the matter coming back before me in a modestly short period of time. Given this conclusion, I do not need to deal with the instances when the applicant says the council has departed from this control. However, given the paucity of detail concerning each of them, they would have been of little weight if I had had to consider them. 40 However, having reached that conclusion, I am also satisfied that the present application fails on another significant basis. That relates to the provision of car parking. 41 The provisions of the KPSO provide, in cl 25J(2)(a) and (b), a number of controls that are numerically prescriptive. 42 The terms of 25J(2) reads as follows: Consent must not be granted to a development that will result in more than one dwelling on a site unless; a. at least one car space is provided per dwelling and, if the site is not within 400 metres of the pedestrian entry to a railway station, one additional car space is provided for each dwelling with 3 or more bedrooms; and b. at least one additional visitor car space is provided for every 4 dwellings, or part thereof, that will be on the site. 43 That provision is numerically prescriptive and is, as a consequence, capable of objection pursuant to State Environmental Planning Policy No. 1 (SEPP 1). Such an objection, if made and sustained, would permit noncompliance with the standards i cl 25J(2). The applicant made such an objection and it is in evidence in the proceedings. Imported into that SEPP 1 objection, by necessary inference, is a report from Christopher Stapleton, the applicant's consultant concerning parking issues. 44 The requirements for satisfaction of the relevant provisions of SEPP 1 have been set out and known for a significant period of time – having been articulated in a decision of Lloyd J in Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46 at para 26. 45 It sets out the various questions that an SEPP 1 objection must pose and then answer. The first of those questions is to identify the development standard. The second of those questions is to identify the purposes of such development standard. 46 It is clear to me that the development standard that is contained in 25J(2) is in two separate parts - each of which must be the subject of a sustainable SEPP 1 objection. 47 The first is to provide for the necessary level of provision of resident car parking on site and the second is to provide for the necessary level of visitor car parking on site. 48 The SEPP 1 objection states that the purpose of the development standard is to regulate the availability of on-site parking. 49 It also says the development standard, in the context of the overall aims and objectives of the KPSO, is also designed to ensure car demand generated by a development is balanced against principles of ecologically sustainable development. It then recites a number of objectives coming from the KPSO. 50 The SEPP 1 objection then continues to state that the noncompliance is minor. In this context, I note the requirements would be for, in fact, an approximately a 30% increase in car parking if the standards were to be complied with. I find it difficult to see how that is either minor or, to quote the SEPP 1 objection further, results in a slightly reduced parking provision. 51 It is stated on page 3 of the SEPP 1 objection that the aims and objectives of the KPSO is to reduce the dependence on car usage and encourage the use of public transport, walking and cycling but without impacting negatively on local on-street parking conditions. 52 It is clear to me that the second element of 25J(2)(a) that requires additional car parking spaces for residential developments that are outside the 400 m point from a pedestrian entry into a railway station is designed specifically to deal with and have the aim of dealing with the distance from a development to a railway station and (as a necessary inference) the likely non-use of walking and cycling or other form of non-vehicle movement to get to that railway station. 53 The applicant puts to me a document entitled Planning Guidelines For Walking And Cycling which, at 4.3, talks about concepts of potential walkability within a radius of 400 m or 5 minute walk around the centre and 800 m or a 10 minutes walk around a centre that includes a public transport stop. 54 Although those are undoubtedly significant philosophic statements on behalf of the Department, they do not, however, displace the numerical requirement that is contained in the KPSO and which is required to be addressed by the SEPP 1 objection. 55 I am of the view that the SEPP 1 objection does not even go past the first hurdles in that, with respect to resident parking on-site, it does not adequately or appropriately identify the purposes of the development standard nor address them in an appropriate fashion given that the KPSO obviously requires additional parking because of the exceedance of the 400 m distance from the station. This is not discussed. It is therefore not necessary for me, with respect of the other elements of that part of the SEPP 1 objection, to consider them at all. 56 Cl 25J(2)(b) requires, separately and in addition to the provision of parking for residents on the site, the requirement of parking spaces for visitors to the site. That requirement for this proposal would be 4.5 spaces and, as required by the KPSO to be a rounded up number, 5 visitor car parking spaces on the site are required. The deficiecy in these spaces is not specifically addressed in the first elements of the SEPP 1 objection in any fashion whatsoever. 57 I am asked to infer that the letter of Christopher Stapelton of 5 April 2005, deals with this by necessary implication. 58 There is nothing that I could find in reading that document that sets out for me what would be the purpose of the provision of visitor parking on the site and why it should be departed from. 59 It would seem to me that the logical inference for the provision of visitor parking on site is to ensure that, for the reasonably anticipated levels of visitors going to the site, they will be able to park, in normal circumstances, by accommodation in parking provided on the site. 60 That is consistent with a provision I have been taken to about minimizing the impact of on-street parking that is generated by any development. There is nothing in the material in the SEPP 1 objection or the Stapleton Consulting document, which appropriately and accurately addresses that issue. 61 I have therefore concluded that the SEPP 1 objection is not capable of being sustained and that in itself is fatal to the application. 62 A number of other matters were canvassed during the course of the proceedings such as whether or not an appropriate basis of calculating the footprint of the development would lead to it being either 34.97% or 35.011% or 35.541% of the area of the site. 63 In light of the conclusions I have reached about the design of the building and the SEPP 1 objection it is not necessary for me to determine that and it would be purely speculative and unnecessary to do so. The applicant will, however, need to do so if there is some future application for the site. 64 The final matter arises which it is also unnecessary for me to determine is the question of whether or not there should be on site provision for the collection of waste by a council contractor's vehicle entering the site. 65 That arises from a Development Control Plan, known as DCP 40, which came into effect on 5 May 1998. I am satisfied that any re-design of the proposal for the site compliant with the Development Control Plan is probably capable of dealing satisfactorily with the DCP 40 concern. As a result, it is not appropriate for me to address those issues in this decision. 66 The consequence of my decision is that orders I will issue will be to the effect that: 1. The appeal is dismissed; 2. Development Application 1334 of 2004 for the demolition of the existing structures and construction of a residential flat building comprising 18 units, car parking and landscaping at 2A and 2B Killara Avenue, Killara, is determined by the refusal of development consent; and 3. The exhibits may be returned to the parties. 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.