Barton & Kristy Pursche v Ku-ring-gai Council [2004] NSWLEC 705

Land and Environment Court of New South Wales

CITATION : Barton & Kristy Pursche v Ku-ring-gai Council [2004] NSWLEC 705 APPLICANT: PARTIES : Barton & Kristy Pursche RESPONDENT: Ku-ring-gai Council FILE NUMBER(S) : 11154 of 2004 CORAM: Watts C at 1 KEY ISSUES: Development Application :- The front setback to Elgin Street is inadequate - Private open space area is deficient for Dwelling 1 - Eastern side setback is inadequate for Dwelling 1 and Front setback is inadequate for Dwelling 2. LEGISLATION CITED: Ku-ring-gai Planning Scheme Ordinance, (KPSO), and State Environmental Planning Policy No 53, (SEPP53) - Environmental Planning and Assessment Act 1979, ss 79C and 97 CASES CITED: DATES OF HEARING: 14/12/2004 EX TEMPORE 12/14/2004 JUDGMENT DATE :

APPLICANT: Mr S Kondilios, solicitor SOLICITORS: Maddocks LEGAL REPRESENTATIVES: RESPONDENT: Mr A Hudson, solicitor SOLICITORS: Wilshire Webb

JUDGMENT:

Appeal No: 11154 of 2004 12

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

14 December 2004

11154 of 2004 - Barton & Kristy Pursche v Ku-ring-gai Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of Ku-ring-gai Council (the council) to refuse an development application to demolish the existing dwelling, construct a detached dual occupancy development on Lot B, DP372816, being No. 14 Elgin Street, Gordon. 2 I visited the land in company with the parties on the morning of the day of the hearing. 3 I have concluded that the application is successful and the only issue of the side setbacks from Baldwin Street would not be a reason for refusal of the application when considered under s 79C of the Environmental Planning and Assessment Act 1979 . The land 4 The land is situated on the corner of Elgin and Baldwin Streets, has an area of 1114.84m2 and is rectangular in plan. The front boundary to Elgin Street, is 24.384m and the long boundaries are 45.72m. 5 Erected on the land is a single two-storey dwelling and detached single garage with attached carport. Vehicular access is off Baldwin Street. 6 The land slopes by almost 9m from its southeastern corner to its northwestern corner. A number of brick, concrete and rock retaining walls are located on the site providing areas of lawn or paved courtyard. 7 The land is well treed, flanked on two sides by well-vegetated nature strips. The Elgin Street nature strip is 4m wide, and the Baldwin Street nature strip is 6m wide. 8 The locality is characterised as a low-density residential area, with a mix of single-storey and two-storey dwellings set in generously proportioned gardens with some large trees. Dwellings range in size from those, which are substantial and well-appointed, to others which are quite modest in size, design and condition. 9 The area is identified in Council's visual character study as being established between 1945-1968. Relevant planning controls Ku-ring-gai Planning Scheme Ordinance, (KPSO), and State Environmental Planning Policy No 53, (SEPP53) 10 Under the provisions of the KPSO the land is zoned Residential 2(c) and the proposal is permissible with consent under the provisions of SEPP53. 11 It is in a Bushfire Prone Vegetation Buffer. 12 Guidelines are found in: · State Planning Policy No. 55, Contamination, (SEPP55); · Ku-ring-gai Dual Occupancy Code, (Code); · Ku-ring-gai Development Control Plan No. 43 (Carparking); · Ku-ring-gai Development Control Plan No. 31 (Access); and · Ku-ring-gai Development Control Plan No. 47 (Water Management). The proposal and its history 13 Development application No 25/04 was lodged with the respondent council on 12 January 2004. The proposal described in plans prepared by Lindsay Little & Associates Pty Limited, in Exhibit A, is to demolish the existing dwelling, construct a detached dual occupancy development on the land. The proposed dual occupancy would comprise two, split-level dwellings, cement rendered with tile roofs. 14 Dwelling 1 would have a floor area of 285m2 and would front Elgin Street. There are four split-levels. The split-level ground floor would comprises a double garage, porch, entry, living room, Bedroom 1 with ensuite and walk-in robe, laundry, lounge/ dining area, kitchen/ family area, and covered terrace accessed off the family room. Two upper levels provide three bedrooms, study/ loft, WC, bathroom and roof storage area. 15 Dwelling 1 would be setback from Elgin Street 7m. It would be setback 2m from the eastern boundary (adjacent to No 16 Elgin Street) and 3.8m from the western boundary (Baldwin Street). Vehicular access to the double garage is proposed via Elgin Street. 16 A private courtyard of 66m2 is proposed at the rear of the dwelling, facing Baldwin Street, and accessible from living areas. 17 Dwelling 2 would have a floor area of 232.4m2 and would front Baldwin Street. There would be three split-levels. Level 1 would comprise a double garage, porch, entry, foyer, living/ dining area, bedroom 1 with ensuite and walk-in robe, and powder room. Level 2 would comprise a family room/ kitchen/ meals and laundry, while Level 3 would provide for two bedrooms, study and bathroom. 18 Dwelling 2 is proposed to be setback 4m from Baldwin Street. It would be setback 3m from the northern boundary and 4.8m from the rear boundary. Vehicular access would be from Baldwin Street. 19 A private courtyard of 92m2 is to be provided at the rear of the dwelling, with access from living areas. 20 A minimum distance of 4.5m would separate Dwellings 1 and 2. 21 Retaining walls are proposed between the proposed dwellings, as well as within each private courtyard, in a response to the steepness of the site (9m from south eastern corner to north western corner). 22 The overall proposed floor space ratio for the development would be 0.46:1. Amended plans 23 Amended plans dated 4 June 2004 were submitted in response to engineering concerns for the driveway levels of Dwelling 1. The floor levels of Dwelling 1 changed, and the council did not consider it necessary to re-advertise the application. 24 Amended plans dated 15 July 2004 were submitted in response to planning concerns and the internal design of Dwelling 2 was changed to maximise solar access to living areas, the height of retaining walls around the private courtyard of Dwelling 1. The council considered re-advertising of the application was not necessary. Notification 25 The original application was notified by letter dated 13 January 2004 to nearby owners and occupants and the council received four (4) letters of support and two (2) letters objecting to the proposal from: 1. Paul and Pauline Davis of No 18 Elgin Street; 2. Meredith and Roger Lewis of No 11 Elgin Street; 3. Basil and Sheila Nash of No 11 Baldwin Street (adjacent neighbours to the north in Baldwin Street); and 4. Scott and Linda Macqueen of 17 Elgin Street. 26 The two (2) letters of objection were received from: 1. John and Lynette Desmond of 12 Elgin Street (across the road from the site, at the north western corner of Elgin and Baldwin Streets); and 2. Gordon and Joy Drummond of 10 Elgin Street. 27 The objections related to: · the zoning that would permit dual occupancy development in the area, · non-compliances with the council's Code, · stormwater, · loss of trees and · loss of privacy, particularly overlooking from dwelling 2 into the back yard and back entrance of No. 12 Elgin Street. The council's decision 28 By notice dated 17 September 2004 the council refused the application for the following reasons: Overdevelopment 1. The proposal is an overdevelopment of the site. Particulars: (a) Non-compliance with the built-upon area control in Section 4.9 of the Dual Occupancy Code, in that, the control requires a maximum built upon area of 40% and the development proposes 46%. (b) Non-compliance with the soft landscaped area control to Section 5 of the Dual Occupancy Code, in that, the control requires a maximum soft landscaped area of 60% and the development proposes 53%. (c) Non-compliance with the private open space provision in Section 5 of the, Dual Occupancy Code, in that, the control requires a minimum private open space of 100m2 or 2 areas each having a minimum area of 75m2 with a minimum dimension of 5m and the development proposes the private open space areas of 66m2 and 92m2 for Dwellings 1 and 2 respectively. Streetscape and visual bulk 2. The proposal has an unsatisfactory visual bulk within Baldwin Street and results in an unacceptable streetscape impact upon Baldwin and Elgin Streets. Particulars: (a) The removal of 11 trees from the site provides limited opportunities for replacement large tree planting to screen the proposed development. (b) Non-compliance with the front setback control in Section 4.9 of the Dual Occupancy Code, in that; (i) the control requires a minimum setback of 9m to Elgin Street (Dwelling 1) and the development proposes 7m; and (ii) the control requires a minimum setback of 5m with 50% of the building setback 7m from Baldwin Street (Dwelling 2) and the development proposes a setback of 4m (44% of the elevation), 4.25m (40% of the elevation) and 5.9m (16% of the elevation). The reduced setbacks result in a prominent built form forward of the surrounding buildings. (c) Non-compliance with the side setback control in Section 4.9 of the Dual Occupancy Code, in that the control requires a minimum setback of 2.9m (ground floor) and 3.7m (1st floor) to the eastern (side) boundary and the development proposes side setbacks of 2m at the ground and 1st floor levels. The reduced setbacks result in the development's massing extending too close to the boundaries. The intent of the side setback controls is to provide sufficient separation to allow for visual relief between buildings and allow for substantial plantings to occur around the development. (d) Non-compliance with the separation between buildings control in Section 4.9 of the Dual Occupancy Code, in that, the control requires a minimum separation of 9m and the development proposes 4.6m. The reduced setback results in insufficient area being provided to provide adequate landscaping in which to frame the buildings. The reduced setbacks also allow for the buildings to be read more closely together such that their bulk and scale will dominant the Baldwin Street frontage. Visual Privacy 3. The proposed terrace to Dwelling 1 has a visual privacy impact upon the south-facing window of Dwelling 2. Particulars: This issue can be resolved through a condition of consent. The hearing 29 The appeal was filed on 22 September 2004 and is within time. 30 At the hearing the court heard evidence from the Court-appointed expert Mr L Fletcher, consultant town planner. 31 Ms U Lang, town planner of Ku-ring-gai Council, prepared the statement of basic facts used in this decision. The issues 32 On 2 November 2004 the council filed a statement of issues: A FRONT SETBACK DWELLING 1. The front setback to Elgin Street is inadequate and should be increased to 9m. A 9m setback will: (a) improve the presentation of the visual bulk of the dwelling within the streetscape and provide for and maintain an open landscaped streetscape, (b) provide greater area for replacement large tree planting (11 trees are being removed), (c) be more consistent with the current setback for the site and the setback of the adjoining property to the east No 16 Elgin Street and generally with the lower side dwellings of Elgin Street, (d) be consistent with the objectives of part 4.9 3 and comply with the requirements of clause 4.9.1 of the Dual Occupancy Code ("the code") and improve compliance with the code's requirements for built upon area / soft landscaped area (built upon area - clause 4.9.3 - 40%; soft landscaped area - clause 5.1.1 - 60%). B. PRIVATE OPEN SPACE - DWELLING 1 2. The proposed private open space area is inappropriate because: (a) it is not "private" being elevated and close to and fronting Baldwin Street, and (b) the area is too small and does not comply with the requirements of clause 5.1.5(b) of the code (100m2 area required, 66m2 provided).