Nick, Simon and Victor Matouk v Ku-ring-gai Council [2004] NSWLEC 654

Land and Environment Court of New South Wales

CITATION : Nick, Simon and Victor Matouk v Ku-ring-gai Council [2004] NSWLEC 654 APPLICANT: PARTIES : Nick, Simon and Victor Matouk RESPONDENT: Ku-ring-gai Council FILE NUMBER(S) : 10861-10866 of 2004 CORAM: Watts C at 1 KEY ISSUES: Development Application :- streetscape & contribution to attractive residential environment - visual and acoustic privacy impacts on neighbours - adequacy of internal solar access & energy efficiency - impact on the solar access to neighbours - relationship to neighbours amenity - building setbacks and visual impact - and residents' submissions. LEGISLATION CITED: Ku-ring-gai Planning Scheme Ordinance 1971, (as amended), (KPSO) - State Environmental Planning Policy No 53, (SEPP53) - Environmental Planning and Assessment Act 1979, ss 79C and 97 CASES CITED: DATES OF HEARING: 24/11/2004 DATE OF JUDGMENT: 11/24/2004

APPLICANT: Mr S Kondilios, solicitor SOLICITORS: Maddocks LEGAL REPRESENTATIVES: RESPONDENT: Mr P R Rigg, solicitor SOLICITORS: Deacons

JUDGMENT:

Appeal No: 10861-10866 of 2004 15

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

25 November 2004

10861 to 10866 of 2004 - Nick, Simon and Victor Matouk v Ku-ring-gai Council

JUDGMENT

1 These are appeals under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Ku-ring-gai Council (the council) of six (6) development applications to demolish two existing dwellings and to construct six (6) detached dual occupancy dwellings (as a series of three detached dual occupancy developments) and to Torrens Title subdivide into six (6) individual allotments under the provisions of State Environmental Planning Policy No 53, (SEPP53) and Ku-ring-gai Planning Scheme Ordinance (KPSO) at Lot 7 DP 12723 and Lot 11 DP 4323, being Nos 32-34 Tennyson Road, Turramurra. 2 I visited the land in company with the parties on the day of the hearing. 3 I have concluded that the application may be upheld when considered under s 79C of the Environmental Planning and Assessment Act 1979. The land 4 The land is situated on the southern side of Tennyson Avenue and is rectangular in shape with an area of 3,300.3m2. 5 The land has a frontage to Tennyson Avenue of 45.415m, a rear boundary of 45.415m, an eastern side boundary of 72.815m and a western side boundary of 72.52m. The land slopes down from the road to the rear with a fall of about 5.5m, with a gentler slope towards the rear third of the land. An easement to drain water 1.5m wide is located on the adjacent western lot towards the rear of that lot. 6 The streetscape in the locality exhibits a wide variety of buildings varying in age, materials, architectural style, design and scale. The newer buildings tend to be two-storeys in height rather than single-storey. Landscaping and large trees are a significant element in the streetscape and the backdrop to dwellings. The landscaping tends to dominate the buildings. Relevant planning controls Ku-ring-gai Planning Scheme Ordinance 1971, (as amended), (KPSO) 7 Under the provisions of the KPSO the land is zoned Residential 2(c), and the proposal would be prohibited were it not for the provisions of State Environmental Planning Policy No 53, - Metropolitan Residential Development, (SEPP 53), which permits the development with consent. Subdivision of land is permissible with consent under the KPSO. 8 SEPP53 permits with the consent of the council, development that results in two dwellings on the one allotment of land, commonly referred to as detached dual occupancy development. The proposal being a series of separate dual occupancy and subdivision development applications is permissible with consent. The permissibility of these sequential, but concurrent, development applications is not in dispute between the parties. 9 Clause 3 of SEPP53 sets out the aims of the Policy and states: 3. Aims (1) This Policy aims to encourage the provision of housing in metropolitan areas that will: (a) broaden the choice of building types and locations available in the housing market, and (b) make more efficient use of existing infrastructure and services, and (c) reduce the consumption of land for housing and associated urban development on the urban fringe, and (d) be of good design. (2) These aims are to be achieved: (a) by establishing planning controls that will provide opportunities for a variety of housing types, such as multi unit housing or multi unit housing combined with development for any other purpose to be developed in areas the councils of which have not adopted residential development strategies approved by the Minister, and (b) by setting out design principles that, if followed, will achieve built form that responds to the characteristics of its site and location, and (c) by encouraging councils to prepare and adopt residential development strategies and supporting local environmental plans and policies that will achieve those aims, and by allowing local government areas to be exempted from the whole or parts of this policy when those strategies and plans are in place. 10 Clauses 19 & 20 under SEPP53 relate to dual occupancy development and state: 19. Development standards 1. The following development standards apply for development allowed by this Part: (a) The allotment is to have an area of: (i) 400 square metres or more where the two dwellings are attached, or (ii) 600 square metres or more where the two dwellings are detached, (b) The building or buildings on the allotment after the development is carried out are to have a floor space ratio: (i) of 0.5:1 or less, or (ii) equal to or less than the floor space ratio of any dwelling that was on the allotment before the development was carried out, if that ratio exceeds 0.5:1. (2) However, if another environmental planning instrument provides development standards that allow higher density development on the allotment concerned, the standards that allow higher density development apply. 20. Car parking requirements consent authority may impose (1) A consent authority cannot, in granting consent for development allowed by this Part, require more than: (a) one car parking space for each dwelling with a gross floor area of 150 square metres or less, or (b) two car parking spaces for each dwelling with a gross floor area of more than 150 square metres. (2) This clause does not prevent a development from having a greater number of car parking spaces than the consent authority can require. 11 The proposed dual occupancy developments comply with these development standards. However, the proposed dual occupancy developments' compliance with the requirements of cl 32 of SEPP53 has been identified in several of the specific issues in these proceedings. 12 Clause 32, Part 5 - Design Requirements of SEPP53 deals with design of residential development and states: 32. Design of residential development Consent must not be granted for development to which this Part applies unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the following principles: (a) The proposed development should: (i) contribute to an attractive residential environment with clear character and identity , and, (Court's emphasis added) (ii) where possible, retain, complement and sensitively harmonise with any heritage conservation areas in the vicinity and any relevant heritage items that are identified in a local environmental plan. (b) The proposed development should, where practicable, consider the visual and acoustic privacy of neighbours in the vicinity and residents by: (i) appropriate site planning, the location and design of windows and balconies, the use of screening devices and landscaping, and (ii) ensuring acceptable noise levels in internal living and sleeping areas of new dwellings. (c) The proposed development should, where possible: (i) ensure adequate daylight to the main living areas of neighbours in the vicinity and residents and adequate sunlight to substantial areas of private open space, and (ii) involve site planning, dwelling design and landscaping that reduces energy use and makes the best practicable use of natural ventilation solar heating and lighting. (d) The proposed development should, where possible: (i) control and minimise the disturbance and impacts of stormwater runoff on adjoining properties and receiving waters, and (ii) include, where practical, on-site stormwater detention or re-use for second quality water uses, and (iii) be designed with regard to the scope for on-site infiltration of water. (e) The proposed development should, where possible, provide personal property security for residents and visitors and encourage crime prevention by: (i) site planning that allows, from inside each dwelling, general observation of the street, the site and the approaches to the dwelling's entry, and (ii) providing shared entries that serve a small number of dwellings and are able to be locked, and (iii) providing dwellings designed to allow residents to see who approaches their dwellings without the need to open the front door. (f) The proposed development should, where appropriate: (i) have convenient, obvious and safe pedestrian and bicycle links from the site that provide access to public transport services and local facilities, and (ii) provide attractive, yet safe, environments for pedestrians, cyclists and motorists with convenient access and parking for residents and visitors, and (iii) where feasible, involve site layout and design that enables people with a disability to access, on one continuous accessible path of travel, the street frontage, car parking, and all buildings, facilities and open spaces within the site. (g) The proposed development should, where possible, be provided with waste facilities that maximise recycling by the provision of appropriate facilities. (h) The proposed development should, where practicable, maintain reasonable neighbour amenity and appropriate residential character by: (a) providing building setbacks that progressively increase as wall heights increase to reduce bulk and overshadowing, and (b) using building form and siting that relates to the site's land form, and (c) adopting building heights at the street frontage that are compatible in scale with adjacent development, and (d) considering, where buildings are located on the boundary, the impact of the boundary walls on neighbours. 13 Compliance with Ku-ring-gai Development Control Plans Nos 40, 43 & 47 was not raised as an issue in the proceedings or as a reason for refusal in the Notice of Determination. DCP40 deals with construction, demolition and waste management, DCP47 deals with water management and DCP43 is the council's Car Parking Code. The proposal and its history 14 The six development applications being: No 217/04, deemed refusal of application for lot consolidation, demolition and construction of two dwellings – Stage 1, (Appeal No 10861); No 218/04, deemed refusal of application for Torrens title subdivision of Stage 1 and Stage 2, (10862); No 219/04, Stages 3A and 3B, (10863); No 220/04, deemed refusal of application for Torrens title subdivision of Stages 3A and 3B - Stage 4, (10864), DA 221/04 deemed refusal of application for construction of two dwelling in Stages 5A and 5B, (10865); No 222/04 deemed refusal of application for Torrens title subdivision of Stages 5A and 5B – Stage 6, (10866) were lodged with the respondent council on 8 March 2004. Notification 15 The six (6) development applications were notified to nearby owners and occupants and the council received (10) ten submissions, including three in Tennyson Avenue and seven from the rear residential complex. A petition was also received from the residents of No 20 The Chase Road, Turramurra. The residents of No 20 The Chase Road and the owners of No 36 Tennyson Avenue commissioned Mr K Brodie, town planner to make a further submission. 16 Submissions were received from Mr D and Mrs F Adams of No 36 Tennyson Avenue, Turramurra; Mr D and Mrs S Dickson of No 37 Tennyson Avenue, Turramurra; Mr D Wong for Mrs M Wong of No 39 Tennyson Avenue, Turramurra; Ms B Sturrock of No 1/20 The Chase Road, Turramurra; Mr D and Mrs G Manor of No 3/20 The Chase Road, Turramurra; Mr L and Mrs P Jones of 4/20 The Chase Road, Turramurra; Mr B and Mrs B Forbes of No 5/20 The Chase Road, Turramurra; Mr B and Mrs J Gray of No 6/20 The Chase Road, Turramurra; Mr J Bagley of No 18/20 The Chase Road, Turramurra; Mrs M Burgess of No 20 The Chase Road, Turramurra. 17 Concern was expressed as to the adverse impact of the proposed dual occupancies on their amenity and lifestyle, particularly with respect to: · overshadowing and loss of sunlight; · loss of privacy; · adverse impact on outlook; · extensive clearing of existing mature native and exotic vegetation; · destruction of the visual and scenic qualities of the neighbourhood; · excessive hard surface areas; · potential stormwater run off and drainage problems; and · inappropriate building design and inability of the dwellings to respect and complement the prevailing streetscape characteristics on the southern side of Tennyson Avenue. 18 Amended plans were provided and notified to the adjoining property owners for a period of fourteen (14) days from 1 to 18 September 2004. Although a number of residents from No 20 The Chase Road were satisfied that the amendments addressed their previous concerns, some residents telephoned the council and stated they still had concerns for the amended plans. The drainage issue was not pressed, however, all the other issues remain of concern to the residents and the council. 19 The application was referred to the following specialist units of the council: · Landscaping: The result in effect is that the entire site is to be cleared. This will obviously have a significant visual impact on the existing streetscape character and adjoining properties. It should be noted that tree numbers differ between the Arborists report and the Landscape Plan. The Landscape Plan overall is satisfactory subject to conditions. · Development engineers: The engineers have recommended approval subject to engineering conditions; and · Heritage: The council's heritage/ urban design consultant stated: I do not object to demolition of No 32, but would recommend recording of the house to be undertaken to the heritage office guidelines. I do not support demolition of No 34. It could be easily retained/adapted/renovated as part of any new development on the site.