Land and Environment Court of New South Wales CITATION : GAT & Associates v Kiama Municipal Council [2006] NSWLEC 829 APPLICANT GAT & Associates PARTIES : RESPONDENT Kiama Municipal Council FILE NUMBER(S) : 10649 of 2006 CORAM: Brown C KEY ISSUES: Development Application :- demolition of an existing dwelling and the construction of a residential flat building - adequacy of landscaping - amenity impacts LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Kiama Local Environmental Plan 1996 DATES OF HEARING: 7/12/06 EX TEMPORE JUDGMENT DATE : 12/07/2006 APPLICANT Ms M L Taylor, solicitor SOLICITORS Norman Waterhouse LEGAL REPRESENTATIVES: RESPONDENT Mr P Moggach, solicitor SOLICITORS Kearns & Garside JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 7 December 2006 10649 of 2006 GAT & Associates v Kiama Municipal Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal of Development Application No. 10.2005.155.1 by Kiama Municipal Council (the council) for the demolition of an existing dwelling and the construction of a residential flat building at 113 Manning St., Kiama (the site). 2 The proceedings were conducted as an On Site Hearing on 7 December 2006 and the judgement reflects the contents of the Statement of Basic Facts and the findings given on site. The site and surrounding area 3 The site is Lot 113 in DP 1076112. It is generally rectangular in shape with a street frontage of 18.65 metres and depth of around 63.5 metres giving a total site area of 1185 square metres. The site currently contains a single storey dwelling house with no significant vegetation. The surrounding area is made up largely of residential flat buildings with residential flat buildings to the north and south of the site. The proposal 4 The proposal provides for the demolition of the existing dwelling and the construction of 4 x 2 storey townhouses with access from Manning St. Relevant planning controls 5 The site is zoned 2(b) Residential under Kiama Local Environmental Plan 1996 (LEP 1996). The proposed use is permissible with consent under this zone. Clause 9(3) provides that consent must not be granted unless the proposed development is consistent with the objectives of the zone as set out in the land use table in cl 9. 6 Kiama Development Control Plan No. 12 - Multiple Dwelling Housing in Residential Zones (DCP 12) applies. DCP 12 provides requirements for maximum floor space ratio, maximum ceiling height, maximum ridge height, private open space and car parking. There was no dispute that the proposed development satisfied these requirements. DCP 12 also provides two separate requirements for landscaped area, being 40% of the site area and 150 square metres for each large dwelling. The proposed townhouses are defined as large dwellings under DCP 12 each having an area greater than 90 square metres. 7 Kiama Development Control Plan No. 31 - Landscaping Guidelines (DCP 31) also applies and provides additional requirements for landscaping. 8 Illawarra Regional Environmental Plan No 1, State Environmental Planning Policy No. 71 - Coastal Protection and Kiama Development Control Plan No. 36 - Building Lines and Foreshore Building Lines also apply but do not relate to the issues in the proceedings. The issues 9 The council filed an amended Statement of Issues containing three separate issues and number of sub issues. These can be grouped into following main areas: 1) whether the landscaping for the proposed development is acceptable considering the non-compliance with the requirements for 4 large dwellings, the breach of the 1 metre wide landscaped planting bed to the boundaries of the site and the overhang of vehicles into the landscaped area 2) whether the proposed development provides poor residential amenity for future residents because of the location of the clothes line and bin storage areas. The evidence 10 Mr Gerard Turrisi, a town planner provided evidence for the applicant and Mr Glenn Debnam, a town planner provided evidence for the council. Landscaping Landscaped area 11 Under the heading "Economic Site Appraisal", DCP 12 requires a minimum landscaped area of 40% of the site (or some 472 square metres). There was no dispute that the proposed development satisfied this requirement as the proposed development provides around 510 square metres of landscaped area. Under the same heading, large dwelling are required to provide 150 square metres of landscaped area per dwelling. This equates to 600 square metres thereby making the development non compliant for this requirement. 12 Mr Turrisi states that it is not logical to have two planning controls addressing the same requirement that are in conflict with each other. He notes that the 40% landscaped area requirement (when combined with maximum floor space ratio, maximum ceiling height and maximum ridge height) provides the scale and built form of development anticipated by DCP 12. 13 Mr Debnam states that even though they address a similar requirement both landscaped area controls are minimum requirements and both must be satisfied. 14 DCP 12 provides the following design objective for "Landscaping and Open Space": Provide attractive, safe and usable open space areas that enhance the quality of the built environment and help blend and integrate the development into the streetscape and neighbourhood. 15 At best, the dual landscaping area requirement controls are confusing however I am satisfied that the non-compliance with the control relating to the size of the dwellings is not a matter that would warrant the refusal of the development application. In coming to this conclusion I have given regard to the compliance with the site area landscaped area requirement, compliance with private open space area requirements for each of the four dwellings, compliance with the setbacks, particularly the street setback and compliance with all other requirements in LEP 1996 and DCP 12. While there were some breaches to the 1 metre planting bed around the perimeter of the site, I am satisfied these departures are not significant in the overall landscape presentation of the site for reasons mentioned later in the judgement. 16 I accept that the design objective for "Landscaping and Open Space" in DCP 12 is satisfactorily addressed through the proposed development. Planting beds 17 Clause 2.3.2 of DCP 31 provides a design guideline that states: Enhance boundary and driveway access with planting beds which are minimum width of 1.0 metre (internal width). Include trees which reach a minimum mature height of 3.0 metres for screening when necessary. 18 The proposed development satisfies this requirement except for a distance of some 12 9 metres on the southern driveway boundary where the planting bed has been reduced to allow for the manoeuvring of cars into and out of the garages. The minimum internal width is around 0.3 metres. The 1.0 metre planting bed width is also reduced for a total distance of 19.95 metres along with the northern boundary within the private courtyard areas of townhouses 2 and 3. The minimum width in this area is around 0.44 metres. I understand that there was general agreement between Mr Turrisi and Mr Debnam that notwithstanding the reduced planting bed width, a tree can still achieve a height of 3.0 metres. 19 I accept that the areas of the garden bed where it is reduced below 1.0 metre will not have any meaningful impact on the landscape qualities of the site. The loss of some landscaping along the driveway, in my view will have only a marginal effect. Similarly, the areas within the private courtyards where is reduced below the 1.0 metre width are relatively small and would not interfere with enjoyment of these private areas, particularly considering the availability of landscaping that can still achieve the DCP 31 requirement of 3.0 metres in height and the compliance with the private open space requirements in DCP 12. 20 I also accept that the small overhang of vehicles into the landscaped area is acceptable, as it does not impact on the ability to provide landscaping in this area, only a different type of landscaping to that elsewhere on the site. Residential amenity 21 The location of the close line, bin storage areas and overhang of vehicles into the landscaped area for some townhouses was seen by Mr Debnam as creating a poor residential environment for future occupiers. Mr Turrisi disagreed. 22 I agree with Mr Turrisi that these matters are not such significant issues that they would require any amendments to the plans. The likely route from the dwelling to the clothes line and bin storage areas is not overly difficult or circuitous although I accept that a more direct route would be desirable but not necessary, in this case. 23 Mr Debnam also raised the question of loss of privacy to the adjoining residential flat buildings although I note that there were no objections raised to the proposed development from these properties. 24 Due to the differences in levels between the site and the adjoining properties, and for additional caution, some additional screening by way of an extension to the existing fence should be provided where the perimeter planting beds are reduced below 1.0 metre. The additional screening should not provide an overall height of 1.5 metres when measured from the high side of the fence so as to minimise overshadowing. Amended plans/ conditions 25 Amendments were made to the plans prior the to the hearing to accommodate access into and out of the garages however the amended plans were not distinguishable from earlier plans. It was agreed that the most recent plans be specifically identified and noted in the conditions of approval. The plans should also include minor amendments discussed at the hearing including the provision of additional screening on the boundary fences. Directions were given for the amended plans to be served on the council by 15 December 2006 and the council to file the amended conditions of consent in response by 22 December 2006. The amended conditions of consent were filed on 14 February 2007, as the amended plans were not served by 22 December 2006. The conditions have been marked Exhibit 5. Orders 26 The Orders of the Court are: 1) The appeal is upheld. 2) Development Application No. 10.2005.155.1 for the demolition of an existing dwelling and the construction of a residential flat building at 113 Manning St., Kiama is approved subject to the conditions in Annexure A. 3) The exhibits are returned with the exception of exhibits 1, 2, and 5. ____________ G T Brown Commissioner of the Court 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.