Land and Environment Court of New South Wales CITATION : BCE Investments Pty Ltd v Ku-ring-gai Council [2006] NSWLEC 434 APPLICANT BCE Investments Pty Ltd PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 10724 of 2005 CORAM: Murrell C KEY ISSUES: Subdivision :- Impact on adjoining properties, shadow impact, solar access, size, landscaping, overdevelopment, character of area LEGISLATION CITED: Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No. 53 DATES OF HEARING: 23-24/11/2005, 28/03/2006 and 07/04/2006 EX TEMPORE JUDGMENT DATE : 04/07/2006 APPLICANT Mr C McEwen, SC (For 23 and 24 November 2005) and Mr B Hones, solicitor SOLICITORS LEGAL REPRESENTATIVES: Hones Lawyers RESPONDENT Mr P Rigg, solicitor SOLICITORS Deacons JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell 7 April 2006 10724 of 2005 BCE Investments Pty Ltd v Ku-ring-gai Council JUDGMENT 1 This is an extempore judgment for a matter that has come before me on several occasions and there have been a number of amended plans. The proposal is for a staged development in the Ku-ring-gai Municipality on the subject site is known as No. 4 Munderah Street, Wahroonga. The applications are staged such that the land is proposed to be subdivided, dual occupancies erected thereon and then further subdivisions to provide individual Torrens title lots. The resultant proposed development is for six dwelling houses on six separate allotments. 2 There were a number of issues raised when the matter first came to the Court. The issues related to the fact that the proposed development would impact on adjoining properties, in particular Nos. 8 and 10 Rhonda Close, Wahroonga, and the adjoining property at No. 2B Munderah owned by Mr and Mrs Loader. The issues in the proceedings initially related to the shadow impact of the proposal on No. 10, in particular the swimming pool and entertaining area. Issue two was the height above ground of houses three and four and the impact on Nos. 8 and 10 Rhonda Close. Issue three was the amount of solar access for dwellings two and five in particular for the private open space, solar access for dwellings two and three. Also at issue was the size of the open space area for No. 3 was considered inappropriate in terms of the size of that dwelling house and the landscaping between the southern boundaries and the setback of house one from the street. The issue, concerning the impacts on adjoining properties included the fact that the proposal, as originally submitted to the council and the plans initially before the Court, was an overdevelopment of the site. 3 The Court has met on a number of occasions and indicated that it considered that there were adverse impacts arising from the proposed development as originally submitted. The site inspection was most instructive in terms of understanding the relationship between, in particular, the dwellings at the rear, Nos. 3 and 4, in the proposal on adjoining properties Nos. 8 and 10 Rhonda Close. The plans were amended to lower dwellings Nos. 3 and 4 and also to increase the setback such that there is now a minimum of 4 m from the boundaries of the adjoining properties. 4 Mr and Mrs Phillips gave evidence on site and they are the owners of No. 8 Rhonda Close. They were concerned about the built form and the height and bulk of the proposed development at that corner of the site. At No. 10 Rhonda Close, owned by Mr and Mrs Higgs, they expressed concern about the overbearing nature of the proposal so close to the boundary and the impacts in terms of privacy and overshadowing on their pool and entertaining area. 5 To the Court there was also evidence and an objection by Mrs Loader, who has also given evidence last week and today in these proceedings in terms of the impact of the proposed dwellings on her house, in particular proposed dwellings Nos. 1 and 6. Dwelling No. 1 of the proposal is the house that fronts Munderah Street and dwelling No. 6 is at the rear of her boundary. 6 Following last week's hearing and assessment, the applicant agreed to set house No. 6 further off the common boundary with the rear boundary of No. 2B Munderah, such that there was a greater opportunity for landscaping and visual separation to the pool area of No. 2B. In terms of proposed house No. 1, it has been moved to the west by 1 m to allow landscaping along the driveway on the eastern side. Also on the eastern side of the driveway there is now the opportunity for landscaping to soften the appearance and the impact of the proposed development. 7 It is important to note that the subject site is one that, for all intents and purposes although zoned Residential A, the proposal will take the form of a multi-unit development site. The issue is whether the development is appropriate in the context of the area. The resultant lots following the subdivision and all the stages of the development will result in lots ranging between approximately 400 and 650 sq m. By the standard of the immediate area, these could be seen to be smaller than many of the residential allotments in the area, although on the other hand they would also represent larger allotments for dwellings erected on lots that are subsequently subdivided in terms of dual occupancy in the Ku-ring-gai Municipality. Opposite the site on the northern side of the road there are large residential flat developments being constructed. 8 The Court has to look at the context of the area and, in the context of the area, I am satisfied that the development as amended in terms of the reduction in the floor space and a reduction of the impacts is satisfactory. It is important, as I said, in terms of the context of the area, to have regard to the fact that the impacts should be considered and ameliorated where it adjoins the lower density residential area, that is the properties at Nos. 8 and 10 Rhonda Close and also 2B. 9 There have been more recent re-zonings within the area to allow multi-unit apartments development on the northern side of Munderah Street and also within the vicinity of the area. However, it is important that the subject site continues to make a contribution in terms of the vegetated leafy nature of the low density Residential A area. I am satisfied in terms of the amended landscape plan that the proposed development will provide a comfortable fit in the streetscape and a contribution to the continued vegetated nature of the area. 10 With respect to impacts on the property at No. 8, the Phillips' property, I am satisfied with the increased setbacks and with the reduced height that the proposal will be one that will not adversely impact in terms of overlooking and privacy. In this regard, the relative levels of the dwelling and the ground have been assessed at in terms of the Phillips' property. 11 Similarly with the Higgs' property at No. 10 Rhonda Close, the Court has had regard to the relative levels of their property which is significantly lower than the subject site. The dwellings being lowered and with the benefit of understanding these sight lines and with the increased setbacks and the provision of shadow diagrams that show that there is no adverse or material overshadowing, in particular at the equinoxes and in summer on the swimming pool area while there may be some overshadowing. I am satisfied that the proposal is one that should not be refused on the basis of overshadowing. 12 The property of the Loaders at No. 2B, which is a substantial well-proportioned dwelling house on a large allotment that will remain as one of the few larger allotments within this area, I am satisfied that the proposal now as amended has had regard to ensuring the continued amenity for this dwelling house. It is most important that the Court does have regard to the impact of developments where there is a different density juxtaposed with a low density dwelling house of this nature in its landscaped setting. Mrs Loader has also taken the opportunity of coming to the Court to understand the plan and to express her concerns about the impact or the effect of being sandwiched between residential flat buildings and medium density development. I am satisfied, however, that this medium density development, dual occupancy development, is one that will not unreasonably impact upon the amenity of No. 2B. 13 The process in this regard is that the amended plans have been notified to the adjoining property owners and they have been given the opportunity to comment throughout the process on the amended plans submitted to this Court. The Court expressed concern that the proposal as originally submitted and the subject of this appeal was an over-development of the site that had unreasonable impacts. However, the Court provided the opportunity for amended plans to be submitted and the amended plans I assess them today are worthy of approval, subject to some minor amendments and ensuring that there is consistency between the full set of architectural plans as well as the landscape plans. 14 The applicant and the respondent have agreed on the conditions which are to be forwarded to the Court as well as the amended plans. The amended plans and conditions are to be with the Court no later than Wednesday 12 April before the Court will issue formal orders. 15 The Court has been assisted in the process of its assessment with the consultants in this matter and council's senior development planner, Mr Stewart. Ms Kerry Gordon is the Court-appointed expert for this matter and she initially prepared a report on the first set of plans to the Court. Since that time there have been a number of amendments. While she did not express the same concerns that the Court raised in its preliminary assessment, I have been assisted by the applicant's consultant, providing details of floor space ratios, site areas and overshadowing to facilitate my assessment. 16 I am satisfied that the proposed development as now shown in Exhibit W and subject to the amendments discussed earlier is one that warrants approval. The proposal must be one that sits within the context of the area and I am satisfied it is consistent with Sch 9 of council's LEP in terms of residential development. It will be one that will provide for alternatives or choices in residential dwellings, but one that also 'fits' in terms of the area and its relationship to adjoining properties. 17 Therefore, on the basis of the Court's assessment, I am satisfied that approval should be granted to the subject development application as now shown in the amended plans. As I said, this has been a case where the Court has allowed amended plans which have not been objected to by the respondent and it has resulted in a development that is satisfactory. As I stated, I did not consider the original plans warranted approval, but I am now satisfied that, with six smaller dwellings on the subject land, the amended proposal is appropriate and importantly it allows for the retention of certain trees on the subject site and that is why the subdivision pattern is configured in the way it is in terms of the future allotments. In terms of the streetscape the retention of the trees and the space for canopy trees is most important to maintain the character of the area. 18 Accordingly, the formal orders of the Court are: 1. The appeal in respect of the property known as 4 Munderah Street, Wahroonga, is upheld. 2. The development application submitted to Ku-ring-gai Council and as amended is determined by consent subject to the conditions contained in Annexure A. 3. The exhibits, with the exception of W, X, Y, 17, 5 and 6 are returned to the parties. 4. The Court notes that the applicant is to pay the respondent's costs from the date of preliminary findings given on 24 November 2005. __________________ J S Murrell Commissioner of the Court rjs 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.