Lydia Zhang v Ku-ring-gai Council [2004] NSWLEC 703

Land and Environment Court of New South Wales

CITATION : Lydia Zhang v Ku-ring-gai Council [2004] NSWLEC 703 revised - 20/01/2005 APPLICANT: PARTIES : Lydia Zhang RESPONDENT: Ku-ring-gai Council FILE NUMBER(S) : 10718 of 2004 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Proposal would be unduly bulky with poor appearance when viewed from the school and from the street - Lack of landscaping especially along the side - Loss of Sydney Red Gum and other trees - Private open space for Dwelling No 1 within the front setback - Privacy to residents in Calvert Street at the rear - Difficulty of gravity-draining stormwater - Constrained vehicular manoeuvring and Resident's concerns. LEGISLATION CITED: Ku-ring-gai Planning Scheme Ordinance, (KPSO) - State Environmental Planning Policy No 53 - Metropolitan Residential Development, (SEPP53) - Environmental Planning and Assessment Act 1979, ss 79C and 97 CASES CITED: DATES OF HEARING: 08/12/2004 EX TEMPORE 12/08/2004 JUDGMENT DATE :

APPLICANT: Mr G McKee, solicitor SOLICITORS: McKees, Legal Solutions LEGAL REPRESENTATIVES: RESPONDENT: Mr R K Graham, solicitor SOLICITORS: Abbott Tout

JUDGMENT:

Appeal No: 10718 of 2004 13

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

8 December 2004

10718 of 2004 - Lydia Zhang v Ku-ring-gai Council

JUDGMENT

1 This is an appeal under 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 to demolish the existing single dwelling, garage and associated works and to construct an attached two-storey dual occupancy at Lot 4, DP 12853, being No 17 Highbridge Road, Killara. 2 I visited the land in company with the parties on the morning of the first day of the proceedings. 3 When considered under s 79C of the Environmental Planning and Assessment Act 1979, I have concluded that the consent award proposed by the parties may be supported, the application upheld and the development application approved subject to conditions. The land 4 The land is situated on the northeastern side of Highbridge Road near Ridgeland Avenue. It has an area of 836.1m2, a street frontage of 18.29m and a depth of 45.72m. The land falls gently to the north/ northwest and is rectangular in plan. It abuts Killara Public School to the northwest and single residential dwellings to the northeast and southwest. A new two (2) storey single dwelling is presently under construction diagonally to the rear northeastern side of the land at No 26 Calvert Avenue. 5 Erected on the land is a single-storey rendered brick and tile dwelling with detached single garage. A low stone fence about 600mm high runs along the front boundary. 6 To the rear of the dwelling are several large trees and a small raised area of stonework. 7 The land is located within the residential suburb of Killara, which is characterised by 1945-68-period single detached dwelling houses as defined by the Council's Visual Character Study. 8 Many single-storey brick and tile dwellings, with either low or no street front fencing predominate in the area. At No 2 Ridgeland Avenue opposite the land a 1.8m-high masonry wall encloses the garden. Open informal landscaping with many large canopy trees is the norm. 9 To the northwest is Killara Public School with an open heavily treed play area. Relevant planning controls Ku-ring-gai Planning Scheme Ordinance, (KPSO) and State Environmental Planning Policy No 53 - Metropolitan Residential Development, (SEPP53) 10 Under the provisions of the KPSO, as amended 14 November 2003, the land is zoned Residential 2(b), and the proposal would be prohibited were it not for SEPP53 wherein the proposal is permissible with consent. 11 Other planning controls, which are relevant as guides, are: · DCP 43 - Car Parking; · DCP 40 - Construction and Demolition Waste Management; · DCP 47 - Water Management; and · Dual Occupancy - Development Control Code. The proposal and its history 12 Development application No 1011/03 was lodged with the respondent council on 13 August 2003 to demolish the existing single dwelling, garage and associated works and to construct an attached two (2) storey dual occupancy on the land. 13 The proposed new dwelling fronting Highbridge Road would comprise family room, kitchen, dining area, lounge room, powder room, laundry and a double garage with internal access to the dwelling. An outdoor entertaining area covered by a pergola, accessible off the family room is proposed along the northwestern boundary of the dwelling. 14 The proposed new rear dwelling would comprise on the ground floor a lounge room, kitchen, laundry, entry, family lounge and a double garage with internal access. Two (2) small pergolas are proposed to the immediate northwest of the lounge room. On the first floor of the rear dwelling there would be four (4) bedrooms, one with ensuite and walk in robe and a separate bathroom. 15 A driveway giving access to the dwellings is proposed along the southeastern side of the land with a landscaping setback of 500mm wide along the length of the driveway. This has now been increased in the amended plans to 750mm. 16 1.5m-high fencing is proposed along the front boundary setback 1m. No details of side boundary fencing have been provided. 17 The proposal is described in the architectural plans prepared by The Winter Group: Drawings Numbered 20309DA00, Revision C; 20309DA02, Revision D; 20309DA03 Revision D and 20309DA04 Revision C, all dated Nov 2004, 20309DA01 Revision F, dated September 2004. 18 Ray Fuggle & Associates Pty Limited prepared landscape plans: Drawing Number L01 Issue B, dated 11 November 2004. 19 AFCE Environment and Building Drawings Number 342972/D2 Revision B, dated November 2004, prepared Stormwater plans. 20 Extracts from a survey plan prepared by A J Campton Reference Number 9840, dated 3/4/03. Amended plans 21 The amended plans were received by the council on about 12 November 2004 and these were then filed about the same time in the Court. The amendments setback the proposal from the northern boundary, broke the bulk of the two-storey component into two elements, setback the proposed driveway from the southern boundary, and altered the extent of articulation of the facades. However, the length of the proposal was extended by around 1.5m. Notification 22 The application was notified to nearby owners and occupants for a period of fourteen (14) days in accordance with the Council's Notification Policy and the council received during the notification period four (4) submissions. 23 Following the submission of amended plans the application was again notified on 10 March 2004 and the council received six (6) further submissions bringing to ten (10) the total number of submissions. 24 A number of residents also gave evidence at the on-site hearing. Evidence was given by Mr J Wang, resident of No 20 Ridgeland Avenue, Killara; Mr D Philipp, of No 90 Spencer Road, Killara; Mr L Higgins, resident of No 24 Calvert Avenue, Killara; Ms V Quinn, resident of No 31 Calvert Street, Killara; Ms D Curruthers, resident of No 27 Calvert Avenue, Killara; Mr J Dalland, resident of No 26 Calvert Avenue, Killara; Ms G Pelly, resident of No 8 Ridgeland Avenue, Killara; Mrs Rollo, resident of No 10 Highbridge Road, Killara; Mr B F Wood, resident of No 15 Highbridge Road, Killara; Ms T Wood, resident of No 15 Highbridge Road, Killara; Ms J Dalland, resident of No 26 Calvdert Avenue, Killara; Mr W Young, resident of No 9 Highbridge Road, Killara; Mr J Mitchell, resident of No 2 Ridgeland Road, Killara; Ms E Marsh, resident of No 7 Highbridge Road, Killara; Ms A Gordon, resident of No 36 Karranga, Avenue, Killara; Ms D Whiteside, resident of No 58 Spencer Road, Killara; Ms A Critenden, resident of No 16 Warrick Street, Killara. 25 Residents key concerns were in respect of: · Drainage; · Vehicular manoeuvring; and · Bulk and scale in the streetscape. The council's decision 26 By notice dated 9 July 2004 the council refused the application for ten reasons under delegated authority. The reasons are those reflected in the issues in the hearing. The hearing 27 The appeal was filed on 16 June 2004. 28 The Court-appointed expert was Ms K Gordon, consultant town planner. 29 Mr S Cox, town planner of the council prepared the statement of basic facts. The issues 30 On 28 July 2004 the council filed a statement of issues. 1. The site is on the low side of Highbridge Road, stormwater cannot be gravity drained to the street and the development application relies on a drainage easement, which does not benefit the subject site. The development is not supported by evidence demonstrating that the Council drainage easement has adequate capacity to carry design flow rates and detention system overflows from the subject property and that new works can be readily connected to this system. The development application is not supported by the written consent of the owners burdened by the Council drainage easement that the development is relying upon. 2. The driveway layout for the development does not provide sufficient room for vehicular manoeuvring, and in particular: 2.1. Vehicles cannot reverse out from the easternmost car space of the garage in house 1 with one movement and vehicles cannot turn into the westernmost space of the garage in house 2 with one movement. 2.2. Insufficient turning area is provided for vehicles exiting (reversing front) the garage at house 2 to egress along the driveway in a forward direction. Excessive turning movements would be required to reverse from garage 2 and egress along the driveway in a forward direction. 2.3. Potential conflict between vehicles exiting (reversing from) the garage of house 1 to egress the property in a forward direction, and vehicles exiting (reversing from) the garage in house 2 Sight distances between respective vehicles in this location will be very limited due to the position of drivers and the rear facing alignment of vehicles. This potential conflict may result in collision of vehicles. 3. The development is unduly bulky and unattractive in streetscape due to the two storey component of the development extending from the front of the building for an excessively long distance of 30 meters along the spine of the building. 4. The driveway surface area and the expanse of the double garages are excessive and will have a significant impact upon the appearance of the development, and do not permit adequate landscaped areas for visual softening. 5. The development will have a significant impact upon an existing Sydney Red Gum located on the adjoining land to the north-west. The stormwater design will have a significant impact upon existing trees which should be retained. 6. The siting of the private open space for dwelling 1 is within the front setback and is inconsistent with the established front gardens of surrounding properties within Highbridge Road streetscape. The provision of private open space within the front setback will necessitate the erection of the 1.8 metre front fence to provide privacy to the private open space. A timber fence to a height of 1.8 metres is inconsistent with the established fencing styles and heights in Highbridge Road. 7. The setback of 1 metre along the western elevation does not comply with the side setback of 2 metres specified in Clause 4.91(f) of the Dual Occupancy Design Control Code. The 1 metre setback of the western elevation from the property boundary will not enable screen planting to be provided so as to separate the proposed building from the adjoining school. The reduced setback will contribute to the bulk of the building when viewed from the western boundary. 8. The floor level of the rear dwelling will be more than 1 metre above the natural ground level, and the living rooms are orientated to the rear of the site towards the properties to the north-east which will cause significant privacy impacts on those neighbours. 9. The landscape plan identified as Drawing L01 and the architectural plans submitted are inconsistent with regard to floor levels and finished ground levels. The floor levels of the living rooms are identified as having RL 49.5 on the landscape plans and RL 50.2 on the ground floor plan of the architectural plans. The inconsistency does not allow for a comprehensive assessment. 10. The site analysis submitted and identified as Drawing Number 20308DA00 has not been prepared in accordance with Clause 31 of SEPP 53. The submitted site analysis is incomplete as the following information has not been included on the site analysis plan: · The plan does not show the buildings on the adjoining properties at the rear of the subject site. The adjoining properties at the rear are known as Nos 26 and 28 Calvert Avenue, Killara. · The plan does not identify the ridge heights of the buildings on adjoining properties. · The difference in levels between the site and adjacent properties at the boundaries particularly is not identified on the site analysis plan.