Land and Environment Court of New South Wales CITATION : Dixon v Ku-ring-gai Municipal Council [2004] NSWLEC 672 APPLICANT Stephen and Katrina Dixon PARTIES : RESPONDENT Ku-ring-gai Municipal Council FILE NUMBER(S) : 10996 of 2004 CORAM: Hoffman C KEY ISSUES: Development Application :- demolition of exisitng dwelling and construction of two dwellings as detached dual occupancies - Streetscape - Designs had features not in sympathy with street character - Shadows - Solar access - Privacy - Landscape State Environmental Policy No. 53 LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Ku-ring-gai Planning Scheme Ordinance CASES CITED: DATES OF HEARING: 30/11/2004 EX TEMPORE 11/30/2004 JUDGMENT DATE : APPLICANT Mr S. Kondilios, solicitor Maddocks LEGAL REPRESENTATIVES: RESPONDENT Mr P. Rigg, solicitor Deacons JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 30 November 2004 10996 of 2004 Stephen and Katrina Dixon v Ku-ring-gai Municipal Council JUDGMENT 1 This is a judgment in Appeal No. 10996 of 2004 between S and K Dixon v Ku-ring-gai Municipal Council. The appeal was against a deemed refusal of development application 1058/03 for demolition of an existing dwelling and construction of two dwellings as detached dual occupancies under State Environmental Planning Policy No. 53. 2 The site was at No. 20 Murdoch Street, Turramurra and running parallel to Murdoch Street was Sandford Street. The two streets were only a single allotment length apart so that all of the older houses had land stretching between the two streets. 3 The proposal is therefore to erect one house fronting Murdoch Street and the other fronting Sandford Street. 4 On the eastern side of the subject property at No. 24 Sandford Street there was a previously approved and constructed detached dual occupancy development. On the western side of the proposal at No. 18 Murdoch was a single dwelling which fronted the latter street but had it's driveway access and garage off Sandford Street. 5 There were several other detached dual occupancy developments in the locality that are already built or under construction. 6 The hearing was originally set to commence on-site and return to Court. However, the parties thought that it could be dealt with as an On-site Hearing. 7 Attending for the Respondent was: - Mr Peter Rigg solicitor of Deacons and - Mr Beveridge of No. 18 Murdoch Street attended to observe and register objections only to potential amendments to a dormer window on the proposed dwelling No. 2. - Mr and Mrs Sinclair of No. 24 Sanford Street attended in order to object to dwelling No. 2 reducing sunlight to their backyard. 8 Attending for the Applicant was: - Mr Stan Kondilios, solicitor of Maddocks assisted by - Ms Pauline Adraskilas, solicitor - Mr S Dixon and Mrs K Dixon, Applicants - Mr I Glendinning, Expert Town Planner. 9 Nearby residents also attended: - Ms N White of No. 22 Murdoch Street attended on behalf of the applicant in support of proposal as did - Mrs Lauder of No. 16 Murdoch Street 10 Ms Kerry Gordon was the Court appointed expert town planner. 11 There have been other objections, however in pre-hearing negotiation there had been amended plans and by those changes nearly all of the objectors concerns had been resolved particularly in regard to visual and acoustic privacy. 12 A report on the amended plans was tendered on behalf of Ms Gordon and a position statement was tendered on behalf of Mr Glendinning. There was also a letter of support from Mrs White and the applicant tendered the amended plans including the landscape plans, a survey of the site and the neighbours properties and the drainage plans. 13 The respondent tendered the relevant statutes and controls and the original issues, the statement of basic fact and draft conditions. 14 The respondent summarised remaining concerns as being related to: - The streetscape impact of dwelling No. 1 in regard to the setback of its master bedroom on the street front giving the house a character which did not fit into the streetscape. - On dwelling No. 2 there was a dormer window facing Sandford Street and it served bedroom No. 3. The respondent said that it was an awkward and unfortunate design feature, which should be eliminated or changed as there were alternative options available and - Ms Gordon had recommended the dormer be moved to the southern side of the roof. 15 It should be mentioned that both houses were of two storey design where the second storey was contained within the hipped and gabled roof. The second storey rooms were set in from the ground floor plan so that the external walls were only single storey high on the ground floor. The rooms on the upper storey were served either by windows within the gables, or dormer windows, or in some cases sky light windows. 16 In regard to dwelling No. 1 on the Murdoch Street frontage, Ms Gordon had recommended that the bedroom be setback a further 2 m in order to give that elevation more articulation. However, she felt that the roof structure could remain as proposed, and the 2 m setback of the bedroom would simply provide a larger front verandah to that house. 17 Mr Bevridge at No. 18 Murdoch Street said that he preferred in dwelling No. 2 that the dormer window to bedroom No. 3 remain on the northern side of the building because if it was placed on the western side the window would overlook his backyard and entertainment area. If placed on the southern side it would enable people to look into his kitchen, dining and living room windows. 18 Mr Glendinning did not favour the southern orientation of the dormer window as it would mean bedroom No. 3 would obtain no sunlight directly. 19 Ms Gordon said bedroom No. 3 need not have direct sunlight although it would gain some by virtue of a skylight also proposed in that room. Also she did not object to its location on the western side of the roof as, being a bedroom, it would not present an unacceptable privacy problem for the neighbour. 20 Her main objection was the size of the dormer, which was quite large in proportion to the rest of the roof and the roof of the dormer connected directly into the hip and roof plane of the western side of the roof. This was a most unusual design feature and certainly did not represent a conventional dormer construction. It added to the bulk of the roof and would look awkward in her opinion. It would be very obvious from Sandford Street, and given that there were alternative solutions it should be changed. 21 Otherwise she was happy with the Sandford Street elevation of the proposal including it's setback from the street, she did however believe that the street fence should be 1.2 m high and matching gates should be installed at the driveway. The reason being that the front yard of dwelling No. 2 has direct access from its living room via French doors and due to its northern orientation would be the principal private open space for dwelling No. 2. Its rear yard being almost permanently in shadow would only be a service yard. The applicant had no objection to raising fence height. Most properties in the street had front fences so it would not offend the streetscape character. 22 Mr Glendinning suggested that the dormer window could be made much smaller by reducing its depth to 600 mm and this would enable it to be moved to the east away from the western hip of dwelling No. 2. There would be at least a half metre separation of the dormer roof from the hip. Ms Gordon said that would be a satisfactory treatment. Mr Glendinning added that it would enable bedroom No. 3 to retain direct solar access and eliminate concerns about relocation on the western or the southern side. 23 Mr and Mrs Sinclair took the Court onto their property. No. 24 Sanford was another detached dual occupancy. As such it was on a small allotment and the backyard was perhaps only 6 m wide. Since they had bought the property they had added a second storey to the eastern half of the dwelling, and on the western half they had erected a roof over the backyard. Under it were sliding doors to the living room and to the kitchen window. This area was paved. The roof extended almost full width of the backyard. The backyard was on the south side of the house. 24 Ms Sinclair said the only sun they obtained into that area in winter was the late afternoon sun and the proposed dwelling No. 2 would eliminate that. 25 Ms Gordon and Mr Glendinning noted that the living room of their house went through to the front elevation which faced north, but the garden outside that area was not set up as a private open space. Direct solar access to the living room of the house was available from that direction. 26 At the moment there was a large liquid ambar tree and other trees in the subject property that blocked the western sun that Mrs Sinclair spoke about. Mrs Sinclair pointed out that liquid ambars are deciduous in winter. 27 The shadow diagrams indicated that in mid winter the Sinclair's would obtain direct sun into the western side of the covered area from about 12:30pm until 1:30pm after that the proposed dwelling No. 2 would shade that area. However it was noted that the covered roof was the principal source of shade to that area and had been built by the Sinclair's. 28 It seems to the Court that the existing roof even though it had some strip skylights did create the major lack of light at the rear of No. 24 Sanford Street. The proposal having a side boundary setback of 2 m could not be expected to provide a greater setback. Also adjacent to the Sinclair's house the proposals dwelling No. 2 is single storey only and that would minimise the shadow the same as any single storey house on the subject property would do. It was not reasonable to expect more of any alternative proposal. 29 Mrs Sinclair suggested on seeing the landscape plan that the boundary vegetation was quite high and thick and she would prefer any vegetation on the subject property adjacent to her backyard to be no higher than fence height so that she could obtain maximum solar access. 30 The town planners agreed that the changes to the drawings meant that the only windows on that side of dwelling No. 2 were to the laundry, the bathroom, a small study and to the garage, such that there would be no privacy impact on the Sinclair's if the vegetation was kept low. 31 Mrs Sinclair also noted that at the front of the proposal on the Sandford Street side adjoining her property there were two syncarpia trees within 3½ m of each other. These trees are more commonly known as turpentines and grew to 18 m tall. She was concerned that they were too close to her house and would extend canopy above the roof. 32 The parties agreed that two such large trees together was inappropriate, and that only the tree right at the street front boundary should be planted. 33 The Court was then taken along Sanford Street and Murdoch Street to see the other dual occupancy developments and the streetscape. It must be said that the predominant feature of the streetscape is the vegetation consisting of street trees and vegetation in the front setbacks of houses such that the leafy character of the area was quite dominant most houses had front fences. 34 As Ms Gordon and Mr Glendinning had observed there were various street front setbacks varying between the 9 m of the proposal and perhaps even as far as 15 m in some cases. Most houses had articulated street front facades giving varying front setbacks across the width of the allotment. 35 The Murdoch Street dwelling of the proposal called dwelling No. 1 had a little less articulation than that of dwelling No. 2, nevertheless there was articulation with a recessed front verandah to the front porch and the setback gable to the upper storey rooms. 36 Ms Gordon's suggestion of setting back bedroom No. 1 such that it extended the front verandah across the front of it would perhaps increase the articulation to some extent. However, the landscape plans show that along the front boundary at that point 3 m high shrubbery is proposed, together with a magnolia tree. It was pointed out that existing camellia's on the side boundary adjoining Mr Bevridge's property at No. 18 were to be retained. 37 It seemed to the Court that this vegetation would screen and soften that corner of dwelling No. 1 such that the change suggested by Ms Gordon would hardly be seen. This was particularly so when considering that she found it quite acceptable to retain the existing roof as proposed for dwelling No. 1. It was quite a large roof since it contained the upper storey bedrooms, and was by far the most dominant visual feature that would be noticed from the street. Given that, Ms Gordon's suggested change would achieve little. 38 Mr Bevridge had no objection to the proposal on his side even though it meant it would be about 1½ m in front of his front elevation. Ms White said that on the eastern common boundary with house No. 1 she had a garage and a car port which projected as close to Murdoch Street as the proposal, so that it was quite acceptable to her. Mrs Lauder supported the proposal. 39 Overall it seemed to the Court that previously outstanding issues had been resolved satisfactory by the various amendments to the drawings except for a dormer window in house No. 2. Given the alternative suggested by Mr Glendinning and Ms Gordon's comments the Court has concluded that the awkward feature could be made much more attractive for house No. 2 and the streetscape, and should be required as a condition of consent. 40 The changes to the landscape plan as sought by Mrs Sinclair should also be incorporated. 41 The parties in reviewing the draft conditions had agreed that condition No. 40 should be amended as annotated in exhibit 8 and condition No. 64 should be deleted. 42 The Court has concluded that with those changes there was no reason sufficient to refuse the proposal and therefore the orders of the Court are: 1. The appeal is upheld. 2. Consent is granted to a detached dual occupancy development consisting of two separate houses at No. 20 Murdoch Street, Turramurra as shown in the drawings in exhibits A, C and E being drawing No.'s 2710/02 sheets 1, 2, 3 and 4. Sheet 1 as amended to 19 November 2004, Sheet 2 as amended to 18 November 2004 and Sheet 3 as amended to the 18 November 2004 and Sheet 4 as amended to 19 November 2004 by Lindsay Little and Associates and the landscape plan drawing L01 issue A as amended to the 14 August 2003 plan by Julian Grady, Landscape Architects and the drainage plans in drawing No.'s 342138 No. D1 Revision 0, D2 Revision A by AFCE Environment and Building, all as amended by and built in accordance with the conditions in Annexure 'A' here to. 3. That the exhibits be returned to the parties except for Exhibits 6,7,8 and Exhibits A, B, C and E. ______________________________ KG Hoffman 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.