Land and Environment Court of New South Wales CITATION : Owen Haviland Pty Ltd v Ku-ring-gai Council [2005] NSWLEC 354 APPLICANT Owen Haviland Pty Ltd PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 11589 of 2004 CORAM: Bly C KEY ISSUES: Development Application :- Demolition - construction of a new two storey attached dual occupancy - privacy - setbacks - overshadowing - loss of views - landscaping - streetscape State Environmental Planning Policy No. 53 LEGISLATION CITED: Ku-ring-gai Planning Scheme Ordinance Dual Occupancy Development Control Code DATES OF HEARING: 17/06/2005 EX TEMPORE JUDGMENT DATE : 06/17/2005 APPLICANT Mr O Haviland, architect LEGAL REPRESENTATIVES: RESPONDENT Mr P Rigg, solicitor SOLICITORS Deacons JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 17 June 2005 11589 of 2004 Owen Haviland Pty Ltd v Ku-ring-gai Council JUDGMENT 1 This appeal relates to development application No. 420/03 which is for the demolition of an existing dwelling house and the construction of a new two storey attached dual occupancy development under State Environmental Planning Policy No. 53 ("SEPP 53"). 2 The application was lodged under SEPP 53 because dual occupancy development is not permissible under the Residential 2C Zone which applies to this site under the Ku-ring-gai Planning Scheme Ordinance 1971 ("the PSO"). 3 The site is situated at 143 Mona Vale Road, St Ives. It is triangular in shape with a frontage to Mona Vale Road of about 27 m and a total area of about 608 sq m. 4 There are provisions of SEPP 53 that are relevant to this application particularly requiring that development of this kind be of a good design and is subject to certain design principles to which I will later refer. I do not understand that there are any particularly relevant provisions in the PSO, but there are relevant provisions in council's Dual Occupancy Development Control Code ("the Code") which was adopted by the council in 2003 and I will come to those provisions later. I accept that the code has been prepared, notified and adopted as if it were a development control plan and I will treat it as such. 5 The application was notified and one objection was received from the property at 42A Pentecost Avenue, St Ives. Issues of concern raised in that submission relate to matters of privacy, setbacks, overshadowing and loss of views. 6 Council subsequently considered an officer's report which recommended that the application be refused for a number of reasons, and these reasons formed the basis for the council's decision to refuse it. 7 The applicant resubmitted the application for a s 82A review which was dealt with in a further planning report prepared by a council officer. That report again recommended that the application be refused for nine reasons, which reasons, plus bushfire safety effectively became the issues in this case. 8 Evidence was provided for the assistance of the Court by the Court- appointed expert town planner, Ms K Gordon. Whilst he did not give evidence as such, Mr O Haviland, the architect for the proposal provided some assistance to me in relation to my understanding of the design under consideration. 9 In her report, Ms Gordon provides a comprehensive analysis of all of the issues. She deals with the concerns raised by the objector, as well as other possible impacts that might have resulted from this development upon adjoining properties and concluded that none of these concerns are of determinative significance. She also deals with the issues relating to the proposed retaining wall, the fill and the elevated driveway and as a result of changes to the design finds those issues also to be satisfactory. 10 Similarly changes to the design have resulted in her not being concerned about the amount of daylight available to the interior of the proposed dwellings and the ability to manoeuvre cars into and out of the garages so as to be able to enter and leave the site in a forward direction. 11 I particularly note her analysis of the carparking requirements which are not met by this proposal, being theoretically deficient by one carparking space. The amount of excess floor space involved that generates the requirement for the additional carparking space is, and I agree with her analysis in this regard, not sufficient to require an additional parking space. 12 This leaves the two issues which were the focus of the remaining concerns for the council as expressed by Mr Rigg in his submissions. 13 The first issue involves the matters of setbacks, landscaping and streetscape. In this regard it is clear that the proposal fails to comply with the 9 m setback requirement in the Code. Ms Gordon does not accept and I agree with her, that in this case the 9 m requirement needs to be strictly imposed taking into account the nature of surrounding development and the existing topography and existing dwelling house on the site. I also agree with her that the design of the proposed building would not, even absent landscaping, be a dominant element in the streetscape. 14 However, Ms Gordon explained that, in effect, the failure to meet the objectives of the setback requirement was particularly problematical in this case. The relevant objectives relate to the enhancement of streetscape quality and the provision of sufficient areas for soft landscaping. In this regard she pointed out that the character of the streetscape in Mona Vale Road in the vicinity of the site involved open setback areas and canopy trees and it was the absence of the provision of canopy trees in the setback area that resulted her in having a fundamental concern about the proposal. As she said in her report: "The critical streetscape feature of the other dwellings in the locality is missing from the proposal, being the existence of canopy trees forward of the building line. It is the presence of canopy trees forward of and to the rear of dwellings along this portion of Mona Vale Road that creates the character of the streetscape and the lack of a larger front setback removes the potential to continue this character on the subject site". 15 I agree with Ms Gordon, and this is critical to the application, that the lack of provision for canopy trees forward of the building results in a failure of softening of the appearance of the building from the street, making the building, rather than the landscaping, the dominant feature of the streetscape presentation of the site. In my view, this is a sufficient reason for the application not be approved. 16 In this regard however, it seems to me, that a little more attention to this question could resolve this problem and I do not see it that a large number of canopy trees is required in the front setback area. Perhaps even one or two trees would make a critical difference. How that might be achieved I do not know, that is a matter for the architect. 17 Turning to the matter of the solar access to the private courtyard I first note that the code requires the provision of 100 sq m of private open space and it is clear that the proposal meets this requirement. 18 It is a further requirement that there be ground level access from living areas in the associated dwelling. Again, that is achieved by this proposal. Indeed, the proposal to elevate the ground level of the private open space adjacent to the living areas by up to 1 m does not change this conclusion even though some steps will be required to access the open space. 19 However, the code requires that 50% of private open space should have four hours of sunlight. Even if the 50% requirement is set aside and significantly reduced, it is clear from the shadow diagrams provided to the Court that this open space area associated with dwelling 1 will not achieve four hours of sunlight. 20 Ms Gordon suggested that a reasonable provision would, in this instance, be three hours of sunlight around the middle of the day over about 20 sq m of private open space. However she said that this reduced standard would not be met. 21 In considering the more recently provided shadow diagrams, I note that the solar access to the private open space has been improved by the provision of openings in the street wall and the elevation of the courtyard. Even with those changes, I do not accept that the requirement in SEPP 53 that there be adequate sunlight to substantial areas of private open space has been met. The application therefore also fails in this regard. 22 Mr Rigg in his submissions pointed to what he described as bandaid remedies in efforts to resolve the solar access problem. I am not so concerned that an applicant seeks to resolve problems in ways such as this. However, dealing with such matters on the run can be problematical and leave consent authorities with difficult decisions to make. Such difficulties involve the ability to properly and carefully consider other consequences of such remedies. For example, the possible impact of fill (required to elevate the courtyard) on nearby trees. Without appropriate evidence I do not know whether any trees might or might not be adversely affected, bearing in mind the requirement of the code that cut and fill is to be minimised so as not to impact on existing trees. 23 Other consequences such as the appearance of retaining walls and the like also need to be dealt with and in the absence of such details it is difficult to rely on such changes. 24 Also, the placing of openings in the street wall to allow solar penetration into the private open space, may raise noise issues but these may be able to be resolved by the utilisation of glazing as infill panels. Again there may not be any consequential problems and the noise aspects (which are important in terms of the internal amenity of the dwelling house and the courtyard) are probably satisfactory but that is not something that one can be entirely confident about. 25 Overall I am of the view that apart from the matters to which I have referred, the design before the Court is a good one and for the most part is responsive to its site and the locality, but the two issues to which I have discussed in detail are such that I should refuse the application. 26 The orders of the Court will therefore be that: 1. The appeal is dismissed. 2. Development application No. 420/03 for the demolition of an existing dwelling house and the erection of an attached dual occupancy development at 143 Mona Vale Road, St Ives, is refused. 3. Exhibits C and F are retained. ___________________ T A Bly 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.