Land and Environment Court of New South Wales CITATION : PSD Australia P/L & CMBS Australia P/L v Ku-ring-gai Council [2005] NSWLEC 70 APPLICANT PSD Australia Pty Ltd and CMBS Australia Pty Ltd PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 11329 of 2004 CORAM: Bly C Development Application :- Demolition of existing dwelling and the erection of an attached dual occupancy - streetscape - visual - bulk and scale - setbacks - privacy - overshadowing - design. KEY ISSUES: Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planning Policy No. 53 DATES OF HEARING: 10/02/2005 EX TEMPORE JUDGMENT DATE : 02/10/2005 APPLICANT Mr S Klinger, solicitor LEGAL REPRESENTATIVES: RESPONDENT Mr P Marincowitz, solicitor of Phillips Fox JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 10 February 2005 11329 of 2004 PSD Australia Pty Ltd & CMBS Australia Pty Ltd v Ku-ring-gai Council JUDGMENT 1 This appeal relates to Development Application No 344/04, which is for the demolition of an existing dwelling and the erection of a dual occupancy development at 172 Bobbin Head Road, Turramurra. The appeal was dealt with and judgement given at the on-site hearing. 2 The site comprises Lot 20 in DP 36328. It has an area of about 924 sq m and a frontage of about 24 m to Bobbin Head Road. It is situated in an area of detached dwelling houses on various sized and shapes lots that is undergoing a change to medium density development in the form of dual occupancy dwellings. 3 The application was advertised and one objection was received on behalf of the owners of the adjoining property at 170 Bobbin Head Road. Expressed matters of concern relate to: the extent of the proposed buildings footprint and height; overshadowing and visual bulk; overlooking from proposed balconies. 4 The application was refused by the council for reasons relating to: amenity impacts on neighbouring properties; visual impacts resulting from visual bulk; and the absence of an adequate site analysis. 5 The site is situated in the Residential 2(c) zone under the Ku-ring-gai Planning Scheme Ordinance. The proposal is permissible pursuant to State Environmental Planning Policy No. 53 Metropolitan Residential Development ("SEPP 53"). 6 Town planning evidence was given by the Court appointed expert Ms K Gordon. Resident objector evidence was given by Mr and Mrs McInerney of 170 Bobbin Head Road. 7 The original Statement of Issues indicates the council's concern in relation to two matters, leaving aside the suggestion in that statement regarding a possible means of resolving these issues. 8 The principal issue in the case was that of visual bulk particularly that associated with the rear part of the proposed building. This was of concern to the McInerney's and Ms Gordon who was of the view that this was of such concern as to warrant refusal of the application. I shall return to this issue shortly. 9 The second of the two issues was that of streetscape and Ms Gordon dealt with this in her report concluding that the development as viewed in the streetscape would present as a well modulated two storey residential building. She was satisfied that the setbacks from the street were appropriate and were consistent with that of adjoining properties. Also the use of materials and the design of the building would be complimentary to the streetscape. 10 I have considered what Ms Gordon has said and contemplated this during the site inspection and for the same reasoning which she uses I have reached the same conclusion. I thus find that the proposal would meet the requirement of cl 32(a)(1) of SEPP No. 53 that development should contribute to an attractive residential environment with clear character and identity. 11 The McInerney's were also concerned about privacy, the proposed driveway and garaging arrangement and overshadowing. I am now persuaded that the issue of visual privacy has been resolved by the introduction of elevated windowsills at the first floor level. As for overshadowing I heard no evidence of an expert nature to suggest that this would be problematical, also noting the orientation of the site. 12 As for the matter of the driveway along the western boundary of the site and the garages which are oriented towards the McInerney's property I agree with Ms Gordon that the consequences of this arrangement would not be of great significance certainly and not sufficient to warrant refusal of the application. I have reached this conclusion taking into account that these are domestic properties and that the likely associated usage of vehicles would be within a reasonable domestic range and that resulting noise would be within reason. Impacts from car lights would be mitigated by the fact that cars would enter the site in a forward direction and it is unlikely that headlights would be pointed directly at the neighbouring property. Also the provision of an appropriate boundary fence together with landscaping should soften any light spillage. 13 Returning to the principal issue in this case, my attention was drawn to cl. 32, of SEPP 53 by the respondent, suggesting that sub cl. (b) thereof has not been complied with. Relevantly cl 32(h)(b) states that: (h) Visual Bulk The proposed development should were practicable maintain reasonable neighbour amenity and appropriate residential character by: (a) … (b) using building form and siting that relates to the site's landform. 14 I have considered sub cl. (b) and am not convinced that it is helpful in the context of this issue. I accept that the building form and siting as proposed here reasonably relates to the sites landform. Here I note that the applicant has agreed to introduce a greater stepping of the building down the site. More generally I do not see how any of the sub provisions in cl. 32(h) are not complied with by this proposal and that probably means that the preamble within cl 32(h) is not relevant either. Despite this the clear intent is to provide for reasonable neighbour amenity and appropriate residential character and even if this provision were not strictly applicable it is something that the Court can relevantly consider. 15 In her report Ms Gordon explained that the issue goes to the visual bulk of the development as viewed from the adjoining properties and the impact of this on residential character and neighbour amenity. At this point it is also appropriate to take into account s 4.9 of the Dual Occupancy Development Control Code ("the code") which reiterates the provisions of cl. 32(h) of SEPP 53 and elaborates by explaining that, in terms of the visual bulk of new development, one should: Minimise adverse impacts on adjacent and adjoining properties by maintaining reasonable and adequate separation between buildings/development and surrounding land and retain an impression of openness and space between built elements. 16 In this regard I note that the proposal meets the setback and building envelope requirements as contained in the code. Notwithstanding this there remains the concern of Ms Gordon and the McInerny's at the bulky two storey appearance of this proposal as viewed not only from No. 170 at the rear but also from the elevated deck of No. 174. 17 Ms Gordon recognised the compliance with the relevant design requirements and controls but explained that the development fails with regard to the more general assessment criteria requiring development to avoid a bulky appearance. She said that the length of the development and its height in the traditional rear yard area of the site will present an unacceptably bulky appearance when viewed from the neighbouring properties. She also pointed out that the development projects well beyond the established rear building line of the adjoining properties. 18 Dealing firstly with the notion an established rear building line I have not been able to discern an obvious building line during my inspection of the immediate locality. It must be recognised that the area is in a state of transition where its character is changing from that of detached dwellings to that of dual occupancy development, principally attached dwellings. Moreover the so called traditional backyard is disappearing as this change occurs. This is not unusual when localities are redeveloped with medium density development and where such developments have private open space arrangements sometimes similar but mostly very different to that of traditional detached dwelling houses. Bearing in mind that the proposal complies with a particularly detailed rear setback requirement I do not accept that, whilst this development extends into what otherwise might have been a traditional rear yard, this is problematical or a reason for refusal. Of course that does not by itself answer the concerns as to the bulk of the rear part of the building and its impact on neighbouring properties. 19 My attention was drawn to the design solutions for dual occupancy development as contained in the Department of Urban. Affairs and Planning's Dual Occupancy Design Solutions Manual. I could find in it no building form exactly like the proposal. That is not to say that that means this proposal is unsatisfactory but an examination of this manual provides a general indication that buildings even two storey buildings are not precluded from the backyard areas of existing allotments. Indeed there are a number of examples where a new dual occupancy structure is shown quite close to the rear and side boundary. Again I believe this to be a reflection or reinforcement of what I said earlier about the changing character of areas where medium density development of this kind is happening. 20 It is clear that the occupants of the new development (once completed) at No. 170 and the residents at No. 174 will whilst using their courtyards or on their decks be able to see the rear element of this proposal above a conventional 1.8 m high boundary fence. It will also be viewed to varying degrees through existing vegetation including a large oak tree on No. 170 and a jacaranda on the subject site. Other taller landscaping along the boundary is also proposed. Once the landscaping reaches maturity I am convinced that the somewhat stark appearance of the building will become less so. 21 In dealing with bulk and scale I note that that the proposal comfortably complies with the particular setback requirements that council requires for development for this kind, it also complies (in the order of 2 m) with the building height requirement. Indeed the height requirement for the upper most ceiling level is complied with by the top of the roof of the building. 22 It is well established that compliance with various standards does not by itself determine whether or not consent should be granted, but in this case these matters make a significant contribution to my conclusion as to the acceptability of the proposal. 23 There was much discussion about alternative dual occupancy designs for this site. Indeed Ms Gordon recommended a particular form of building. Other suggestions were made as to the driveway and parking arrangement and it may be that a different design may not have been objectionable to the neighbour. However this is not the test that the Court must apply. I have nevertheless taken these matters into consideration and remain convinced that the proposal warrants approval. 24 The appeal will therefore be upheld and consent granted subject to the conditions of consent which include requirements that the west facing upper windows in dwelling 1 have high-level sills to prevent overlooking and for that same dwelling to be lowered by a minimum of 300 mm. It may be that on careful examination of this question that the building might be able to be lowered further and the Court would encourage this to be further considered. 25 All of the exhibits are retained for the time being although most of these will be returned in due course. ________________________ T A Bly Commissioner of the Court ljr 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.