Stalley v Ku-ring-gai Municipal Council [2003] NSWLEC 230

> Land and Environment Court of New South Wales

CITATION : Stalley v Ku-ring-gai Municipal Council [2003] NSWLEC 230 PARTIES : G F Stalley Ku-ring-gai Municipal Council FILE NUMBER(S) : 10200 of 2003 CORAM: Moore C at 1 KEY ISSUES: Dual Occupancy :- LEGISLATION CITED: Environmental Planning and Assessment Act, 1979; s97 State Environmental Planning Policy 53 CASES CITED: Manzie v Willoughby City Council 96 LEC 26 DATES OF HEARING: 25 and 26 August 2003 EX TEMPORE JUDGMENT DATE : 08/28/2003

S Kondilios, solicitor Maddocks Lawyers LEGAL REPRESENTATIVES: P Rigg, solicitor Deacons

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10200 of 2003

Moore C

28 August 2003 G F STALLEY Applicant v KU-RING-GAI MUNICIPAL COUNCIL Respondent Judgment

1 The matter that is presently before the Court is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the refusal by Ku-ring-gai Municipal Council of Development Application 1370/02 which was lodged on 17 September 2002. 2 The application is for a detached dual occupancy at 123 Pentecost Avenue Pymble together with additions and alterations to the existing dwelling. The site is Lot 59 in Deposited Plan 10472. Subdivision is not proposed and is not an issue in these proceedings. However, it is proposed, as part of the application, to construct a substantial fence barrier between the proposed dwelling and the existing dwelling which, whether or not it ever became a subdivision line if approval were to be granted, would act as an effective alienation of the site into two parts. This would provide for exclusive use of the northern portion of the site by the proposed dwelling to front Raglan Street and exclusive use of the southern portion of the site to the dwelling which presently fronts Pentecost Avenue. 3 The site is zoned residential 2(c) under the Ku-ring-Gai Planning Scheme Ordinance and the proposed use is prohibited by that instrument. However, State Environmental Planning Policy 53 has an overriding facultative provision in cl 4 which makes the proposal permissible. 4 The site is approximately 1090 m2 running in a generally north south direction with frontages to Pentecost Avenue and Raglan Streets, St Ives. The frontage to Pentecost Avenue is slightly more than eighteen metres and that to Raglan Street slightly more than nineteen metres. The sides of the allotment are of unequal length as Raglan Street curves toward the north-west across the frontage of that aspect of the allotment making the frontage on the northern side some fifty-three metres and on the other side some sixty-three metres. There is a fall of some nine metres from north to south and a gentle cross-fall. The element of the cross-fall does not have any impact on the matters in issue although the existence of the fall from Raglan Street to Pentecost Avenue causes part of the issues relating to solar access for the southern of the two dwellings. 5 The alterations and additions to the existing dwelling are not in contention but the proposed new dwelling gives rise to the three issues which essentially form the basis of the rejection by the council and for consideration in this appeal. They are described in the joint report of the planning experts which was tendered in evidence in these proceedings as being one, the impact on streetscape as a result of visual bulk and setbacks; two, solar access to private open space of the existing dwelling; and three, removal of the existing English oak tree. 6 Essentially, it is the council's position that either the first or second of the principal issues is determinative and that if the proposal fails either of them, the proposal ought be refused but that if I am satisfied that the proposal passes each of those hurdles I should not refuse the application on the basis of the English oak tree's removal even if I were of the view that it should be retained. In addition, there are three proposed supplementary conditions advanced by the council arising out of the joint planning experts' conference which are in contention. It is the applicant's position (and indeed the council's) that the supplementary conditions are not determinative and the applicant put the proposition to me that if I reached a conclusion on the basis of the three principal issues then the applicant would be prepared to accept the supplementary conditions, if that were necessary, if they were the only inhibitions to the granting of approval. 7 Evidence was given on behalf of the council by Mr N Juradowitch, a consultant planner; by the neighbour immediately to the west of the site, Mr K Davies, and by a consultant arborist, Mr I English. Evidence was given on behalf of the applicant by a consultant planner, Mr A Minto and by two consultant arborists, Messrs D Marsden and D Ford. 8 I turn to the first principal issue, that of streetscape. Streetscape becomes an issue through a sequential passage through a number of the provisions of the State Environmental Planning Policy. The first of these comes from the provisions of cl 3 where in 3(1)(d) there is a requirement that, effectively, any proposed development taking advantage of the instrument should be of good design and from that provision to 3(2)(b) which has the instrument setting out a series of principles that are regarded as being principles of sound design. It provides that, in considering those principles, regard is had to the built form response to the characteristics of the site and its location. 9 The development is a detached dual occupancy and satisfies the minimum allotment sizes and, as there is no subdivision proposed, the total dwelling area satisfies appropriate floor space ratio considerations. Provisions of cl 15 require that the dual occupancy development is to be designed and assessed with a full understanding of the opportunities and constraints of the site and designed having regard to the design principles contained in Pt 5 of the instrument. There was no issue, as I understand it, that cl 15B(2), that is requiring an understanding of the constraints and opportunities of the site, was not satisfied. 10 The question arising with respect to streetscape and indeed with respect to solar access is whether appropriate regard has been had to the constraints of the site in applying the design principles in Pt 5. Pt 5 in cl 27 sets out a general objective for the Part which simply calls in aid the detailed provisions contained in cl 32. The relevant condition in cl 32 that picks up the issue of streetscape is cl 32(h) and the council here calls in aid (a), (b) and (c) of this provision. The proposed new development is a two storey dwelling with what is colloquially described as 'rooms in the roof'. 11 There are significant constraints in the location of this proposed dwelling facing Raglan Street because of the fact that the existing dwelling on the site is set substantially back from the Pentecost Avenue frontage and somewhat more than halfway toward the rear of the allotment. That provides a constraint on the amount of land available for the construction of a second dwelling without demolition of the existing dwelling. 12 The use of a landscape plan to cure defects in design is not ordinarily a matter that would be taken into account by this Court but, in this instance, the landscape plan has been commented as being of high quality by a number of witnesses and I do not understand that quality of landscape design to be in dispute. Given the constraints on the site in this instance, it would be appropriate to have some regard to the opportunities provided by the landscape plan to cure any defects that might otherwise arise with respect to presentation in the streetscape. 13 The predominant present character of Raglan Street is that it is entirely of detached dwellings. To the other side of the street and to the south of the present site, all dwellings are dwellings that have their frontages, from the plan in evidence through Mr Minto's statement of evidence, exclusively to Raglan Street with a number of the sites on the lower side, commencing with the present site, having dual frontages to Raglan Street and Pentecost Avenue. All of the dwellings, with the exception of one diagonally opposite the subject site on Raglan Street, appeared to be of single storey character. However, the building that is diagonally opposite to the north-east of the present site across Raglan Street (on the high side) is a two storey dwelling which was obviously newer than most of the other (if not all of the other) buildings fronting Raglan Street. It also did not have a setback at first storey although there was a roof covering an open area at ground level which broke, to some degree, the presentation of the building. 14 It was Mr Minto's evidence, not contradicted by evidence from the council, that the probable future character of the Raglan Street precinct would lead not to a static preservation of its single storey character but to changes over time in an unable to be calculated pace into a streetscape that would incorporate more two storey dwellings. 15 A further issue arose in consideration of the present proposal as to whether the building line, which was attested by Mr Minto to coincide at the southern end with the adjacent property fronting Raglan Street and at the northern end with the brick garage on the Davies' property, was appropriate or not – Mr Minto giving evidence that it did represent an appropriate building line and Mr Juradowitch giving evidence that it was not appropriate to have regard to the garage in this regard and that perhaps a more restrictive building line ought to be adopted in order to reduce issues of bulk and presentation. I am satisfied, on balance, given the constraints of the site and particularly given that the present site and the sites to the north are dual frontage sites, that the proposed building line would generally respect the building line of those dwellings to the south which have an exclusive frontage to Raglan Street. 16 A secondary issue arose as to the subsidiary dormer window whose removal is proposed by one of the supplementary conditions advanced by the respondent council. It was submitted by the council that removal of this dormer, whilst not curing its concerns as to bulk and presentation to Raglan Street, would go some way towards ameliorating matters but would still not result in an acceptable dwelling. I do not consider thatr the dormer would have significance in this context but will return to that issue later when dealing with the supplementary conditions to the limited extent there appropriate. 17 Although undoubtedly not an outstanding architectural contribution to the future streetscape of Raglan Street, I am satisfied that the proposed building and its building line is appropriate for the reasons that I have outlined. Putting it in a double negative sense, I am of the view that the presentation of the proposed dwelling is not sufficiently unacceptable to be unacceptable in the present context and refusal is not warranted on that basis. 18 I turn to the issue of solar access to private open space. The provisions of SEPP 53 at cl 32(c) provide in 32(c)(i) relevantly that there must be adequate sunlight to substantial areas of private open space. There is no requirement that the private open space be useable or appropriate but I consider that that is necessarily imported into the clause to give it effect and meaning. Again, there are constraints on the provision of private open space because of the location of the existing dwelling. 19 The proposed private open space for the proposed dwelling to front Raglan Street is proposed to be at the Raglan Street frontage but, as it is on the north of the proposed dwelling, the council does not take issue as to the adequacy of that private open space. The issues relating to private open space that are determinative in this appeal relate to solar access to the private open space for the dwelling that is the existing dwelling on site and which will retain a frontage to Pentecost Avenue. 20 The applicant contends that the provision of the State Environmental Planning Policy is satisfied by the existence of two areas of private open space which it says between them constitute sufficient private open space with solar access – both as to area and duration – to satisfy this provision of the SEPP. In effect, the applicant says that where there is a defect in one, it is cured by the other and vice versa. 21 The two areas of private open space are as follows. One is an area to the south of the present dwelling, that is on the Pentecost Avenue frontage, where it is conceded (following marking of the landscaping plan by Mr Minto) that there is an area of some 56 m2 which at the winter solstice would have continuous sunlight throughout the day. This area suffers, in the submission of the council, deficiencies as firstly it is somewhat remote from the existing dwelling in terms of useability, secondly it is considerably lower than the existing dwelling in terms of useability and thirdly it is located with its accessibility (in addition to the height imposed limitations) being through the bedroom and formal lounge room areas rather than the family room, kitchen room and generally preferred living area of the house. The second area of private open space is an area to the north between the present dwelling and the fence to be constructed across the allotment. 22 It is the uncontested position that this will receive limited sunlight effectively, on my understanding of Mr Minto's evidence, for approximately two hours to portion of its area in the afternoon only. This private open space comprises a timber deck and a paved area adjacent to it to the north. It is the position of the applicant that the two areas when taken in juxtaposition provide an appropriate response given the constraints of the site and it is the position of the council that together they do not provide an adequate provision of accessible private open space with appropriate and adequate sunlight to them. 23 There is no requirement in the SEPP that the solar access be through a single area. Indeed, a more preferable interpretation of the words substantial areas in cl 32(c)(i) certainly permits of more than one area for satisfaction of the clause. Secondly there is nothing in the provision that would act as an inhibition of using the defects of one space to be cured by the advantages of another. 24 The problem that I consider that the applicant faces in this regard is that it is obvious from the plan of the existing dwelling together with its additions and alterations that the primary focus of living will be toward the private open space on the northern side of the dwelling and that is the private open space which obtains the least amount of sunlight. I would be satisfied with this if I considered that the private open space to the south acted as a total cure. However, the difficulties of accessibility and the primacy of the use of the rooms to the northern side of the dwelling makes it, on balance, unsatisfactory and that if the design of the proposed new dwelling permitted greater solar access to the northern portion perhaps that might enable the northern solar access area (as the dominant area) to be regarded as struggling over the hurdle because of the assistance it would receive from the south. However, the extremely limited nature of the solar access to the northern portion causes me to conclude that, on balance (and on a fine balance at that), there is not adequate sunlight to substantial areas of private open space as required by cl 32(c)(i) and that this is a sufficient defect to warrant refusal of the appeal. 25 I turn to the issue of the English oak tree. There is conflicting evidence as to the life expectancy of the tree. There was a deal of technical evidence given by all of the witnesses as to the use and interpretation of readings made using an instrument known as a Resistograph for testing the strength of this tree. The problems with the tree arise from the 1991 storms which devastated a good deal of the foliage of Ku-ring-gai Municipality and led to the failure of the main trunk of the tree and caused it to be trimmed, using that expression in a non technical sense, by Mr English who gave evidence for the respondent council. The issues principally related to the likelihood of failure of the upper limbs of the tree and the likely safe useful life expectancy (SULE) of the tree. 26 Without considering the issue of the possibility of damage to a future dwelling which might be constructed at the Raglan Street frontage, the only likelihood of damage to property which would be occasioned if the tree failed would be to the garage located on the Davies property and there is a well accepted proposition of law of volenti non fit injuria, that is that volunteers cannot be injured if they assume the risk. In this case it was clear by the evidence given from Mr Davies that if the tree were to remain he would voluntarily assume the risk. However that is a risk for the present occupants being accepted and does not constitute an open ended assumption of risk for future occupants of that property but it does lessen that as a matter to which I should have regard at the present time. 27 The landscaping proposal, which as I previously noted was subject of general commendation, proposes the planting of two toona australis (Australian red cedar) at the Raglan Street frontage. There was considerable discussion as to the time that it would take for them to achieve both some prominence in the streetscape and their maximum height and substitution for the visual impact of the existing English oak. 28 It was understandable that Mr Davies would wish to have the English oak retained as it is almost on the boundary of his property and provides a significant and attractive visual setting to the south-east of his property and would be viewed and provides such a backdrop to his swimming pool and primary outdoor living area. However the evidence, including I thought a most professional and generous concession by Mr Juradowitch, that if he were to be given a choice he would think that it would be in the long term interests of the neighbourhood and the streetscape for the two cedar trees to be planted – although he did add the caveat that he did not live there - is generally to the contrary. In the long term, the preponderance of the evidence is that the toona australis option is the preferable one. 29 I consider this is the appropriate and desirable position and that I would not regard the necessity of retaining the English oak tree, on merit grounds, as a reason to refuse or require modification of the application. 30 On this basis, I do not consider it necessary to express a firm preference between the evidence of the expert witnesses as to what might be the SULE of the tree. However, I do note in this regard that with the conflict of evidence as to the use of Resistograph material Mr English made a number of concessions to the evidence of Mr Marsden on this issue. If it were to be necessary I would consider it likely that the evidence of Mr Marsden would be preferred to that of Mr English but it would be a matter of a balance which I do not need to address in these proceedings. 31 Having reached the conclusion that the appeal should be dismissed solely on the basis of the inadequate provision of adequate sunlight to substantial areas of private open space, as I interpret the provision, it is not strictly necessary for me to deal with the supplementary conditions. However, as Bignold J noted in Manzie v Willoughby City Council 96 LEC 26, it may sometimes be helpful to the parties to make obiter remarks if they assist in reaching agreement on a future design but obviously such remarks would have no influence on the determination of any further appeal de novo on a separate and unrelated application. 32 I indicate, on this basis only, that with respect to the supplementary conditions I would consider it appropriate that the bedroom window on the Davies' side be reduced by the length suggested in the supplementary condition as it was obvious from the view on site that the private open space of the Davies was considerably used, that there would still be some overlooking even if the window were reduced in size, but that such reduction in size would significantly remove the likelihood of that overlooking. 33 A similar position relates with respect to the kitchen window to the east with its lower proportion being of opaque glass. Indeed, to be fair to him, Mr Kondilios went as close as he could to conceding this point without doing so, and I would consider that the requirement in that instance, if it were the only matter remaining to be determined, that such window should be of opaque glass. 34 Given that my findings on private open space solar access to the north of the existing dwelling will require some reconsideration of what the roof structure of the proposed Raglan Street frontage dwelling might look like I do not consider it necessary to express an opinion on the dormer structure save to repeat, as I said earlier, that its presence or otherwise is not a significant factor in determining whether or not the proposal was acceptable in a streetscape perspective.