Land and Environment Court of New South Wales Lexington 88 v Ku-ring-gai Council [2005] NSWLEC 635 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments. Applicant: Lexington 88 Pty Ltd PARTIES : Respondent: Ku-ring-gai Council FILE NUMBER(S) : 10131 of 2005 CORAM: Roseth SC - Brown C KEY ISSUES: Development Application :- erection of residential flat building - streetscape - landscaped area Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Ku-ring-gai Local Environmental Plan 194 DATES OF HEARING: 18-19/10/2005, 15/11/2005 DATE OF JUDGMENT: 11/18/2005 Applicant: Mr D Baird, solicitor of Maddocks Lawyers LEGAL REPRESENTATIVES: Respondent: Mr P Rigg, solicitor of Deacons JUDGMENT: - 7 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Roseth SC with Brown C 18 November 2005 10131 of 2005 Lexinghouse 88 Pty Ltd v Ku ring gai Council JUDGMENT The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 1 Commissioners: This is an appeal against the deemed refusal by Ku-ring-gai Council of Development Application No 1099/04 to demolish the existing structures and construct a residential flat building containing 51 dwellings on lot 1 DP 260234, lot 1 DP 219761 and lots 2 and 4 DP 269533, known as 1-1A Lamond Drive and 1444-1444A Pacific Highway, Turramurra (the site). 2 Because of its proximity to the site and the similarity of issues, a separate appeal to construct a residential flat building with frontages to Finlay Road, Turramurra (Appeal No 10130 of 2005, Finpac 88 Investments Pty Ltd v Ku ring gai Council) was heard concurrently. The site 3 The site has frontages to the Pacific Highway and Lamond Drive of 54m and 61m respectively and an area of 4,240m2. The 67m long western boundary adjoins a development site called Bluegums, for which a development application for 151 dwellings set in circular configuration has been lodged. The northern boundary is 94m. The site now contains four two-storey houses. The proposal and its history 4 The proposal provides for the demolition of all existing structures and the erection of a single residential flat building accommodating 51 dwellings, consisting of 4 x 1 bedroom apartments, 34 x 2 bedroom apartments and 13 x 3 bedroom apartments. The building has a varying setback to Lamond Drive with a minimum setback of 9 m. It "steps down" the sloping site and provides for the basement car parking over five levels and the apartments over nine 9 levels. 5 The council notified the development application to adjoining owners and received five letters of objection and two letters of support. Relevant planning controls 6 Ku–Ring–Gai Planning Scheme Ordinance - Local Environmental Plan 194 (LEP 94) zones the site Residential 2(d3). The proposed development is permissible with consent within this zone. 7 Development Control Plan No 55 – Multi-unit Housing Railway/Pacific Highway Corridor and St Ives Centre (DCP 55) became effective on 22 December 2004. Clause 2.7 states that the DCP applies to applications made after the date of commencement. The subject application was lodged before the date. 8 State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) and the Residential Flat Design Code (RFDC) also apply. The issues 9 The council filed a Statement of Issues containing four issues with a number of sub-issues. With the submission of further amended plans the issues were reduced. The remaining issues can be grouped into the following main areas: 1) streetscape and visual impact; 2) landscape area including the amount of deep soil zone, tree retention; 3) matters raised by objectors including: § the impact on the character of the area, § traffic and parking, § impacts on residential amenity. 10 During the hearing the issues were further narrowed because the applicant offered to reduce the built-upon area. The main outstanding issues was whether the reduction in built-upon area should occur with a priority to introduce a break in the building or to increase its setback from either the street alignment or the southern boundary. 11 The Statement of Issues referred in several places to DCP 55 despite cl 2.7, which exempts the subject application. For applications lodged before 22 December 2004 the significance of DCP 55 is that it will apply to other similarly zoned sites in the vicinity. It is reasonable to assume that those sites will be developed in accordance with DCP 55. While DCP 55 does not apply to the subject application, it gives an indication of the future character of surrounding development on similarly zoned land. The evidence 12 The parties agreed to the appointment of Mr Stuart Pittendrigh as the Court appointed arboriculture expert. The applicant provided evidence from Mr Nigel Dickson, an architect/planner and Mr Matthew Taylor, a landscape architect. 13 The council provided no expert evidence at the hearing and relied on the reports of its officers when the development was reported to council. In addition to receiving copies of the letters provided to the council when the development application was advertised, the Court heard the following residents on site, where they identified their specific concerns: · Mr M Riley, 20 Denman Rd. – bulk when viewed from property, overshadowing, changed ambience of the area, drainage, · J Sweeting, 22 Denman Rd. – traffic, · N Tuffley, 17 Denman Rd. – traffic, · P Haliran, 16 Finlay Rd. – traffic, · J Salmond, 17 Lamond Dr. – need for traffic lights. Findings on matters raised by objectors Traffic/parking 14 A large number of local residents expressed a concern over the difficulty in turning right into the Pacific Highway. Access has to be obtained via a left turn into Pacific Highway, into Finlay Street and then to Denman St and Duff St. It is then necessary to use an existing supermarket carpark to reach the Pacific Highway from Fox Valley Rd. Access can also be obtained via Kissing Point Road, although this route is circuitous. 15 It was common ground that the proposed development exceeds the council's parking requirements. Traffic generation was addressed in the council report, concluding that the net additional traffic volume at the Pacific Highway/Lamond Drive intersection does not create a problem. However, the conclusion is conditional on access to the Pacific Highway being restricted to left turn only. In the absence of any contrary evidence, we accept these conclusions. 16 We accept that the poor access to the Pacific Highway is a matter of concern to the residents, particularly in view of the increased densities in the immediate area. However, it is not a matter that falls within the responsibility of the applicant and consequently it is not a valid reason for the refusal of the development application. Character/ loss of trees/ visual impact 17 The concerns expressed by the local residents over the changing character and the loss of existing trees is understandable; however it is a direct consequence of the recent rezoning of the site and surrounding area. The level of development contemplated by the zoning will require the removal of existing vegetation. We accept the evidence of Mr Pittendrigh that the landscaping plan will optimise the landscaping in the setback areas. 18 The appearance of the proposed development from Denman Street will change from a low-density to a more urban character. The new zoning anticipates the new character. Drainage 19 The issues of drainage, flooding and overland flow are addressed in the council report. The report found the drainage arrangements to be acceptable subject to the imposition of appropriate conditions. In the absence of any other evidence, we accept the conclusions of the council officer. Determination of issues and directions 20 Following the site view and further narrowing of the issues between the parties, the Court was requested to provide a determination on the outstanding issues, principally on how the building's footprint should be reduced. 21 On 18 October 2005 the Court made the following determination: The parties have asked us to give our view on the outstanding issues in these appeals. It is common ground that the built-upon area in the Lamond Drive application should be reduced by about 160m2. While we do not think that DCP 55 applies, we note that the proposed setback almost complies with the numerical setback of the DCP and fully satisfies the design objectives of the setback control. The outstanding issue in the Lamond Drive application is whether the reduction in built-upon area should occur with a priority to introduce a break in the building or to increase its setback from either the street alignment or the southern boundary. In our opinion, there would be less benefit in introducing a break in the building than in increasing its distance from boundaries. We note that this site is not on the edge of the zone and that the opposite side of Lamond Drive is also zoned for increased density. The setback from boundaries is not as critical as on the Finlay Road site. In our opinion any reduction of the building resulting from a reduced built-upon area should be used to increase the setback from boundaries, but the extent to which this should occur in relation to different boundaries should be left to the designer to achieve the best design for the building itself. 22 The Court directed that the applicant prepare and file and serve, by 28 October 2005, amended plans to address the matters in the above determination. The parties were to file the agreed conditions by 4 November 2005. Leave was granted to the parties to respond otherwise orders would be made in Chambers after 8 November 2005. Amended drawings 23 On 15 November 2005 the applicant filed amended drawings. The parties agreed that these reflected the determination of the Court on 18 October 2005. The parties agreed to conditions. In the circumstances the appeal is upheld and the application approved. Orders 1. The appeal is upheld. 2. Development Application 1270/04 to demolish all existing structures and construct a residential flat building containing 51 dwellings on lot 1 DP 260234, lot 1 DP 219761 and lots 2 and 4 DP 269533, known as 1-1A Lamond Drive and 1444-1444A Pacific Highway, Turramurra is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 2, E and G. _________________ ___________________ Dr John Roseth G T Brown Senior Commissioner Commissioner of the Court 23/11/2005 - text was missing - Paragraph(s) all paragraphs 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.