> Land and Environment Court of New South Wales CITATION : Avi Rubinstein v Ku-ring-gai Municipal Council [2003] NSWLEC 389 revised - 16/06/2004 APPLICANT Avi Rubinstein PARTIES : RESPONDENT Ku-ring-gai Municipal Council FILE NUMBER(S) : 10782 of 2003 CORAM: Bly C Development Application :- Construction of two storey attached dual occupancy Streetscape KEY ISSUES: Bulk and Scale Solar Access LEGISLATION CITED: State Environmental Planning Policy 53 Environmental Planning and Assessment Act 1979 CASES CITED: DATES OF HEARING: 03/12/03,04/12/03 EX TEMPORE JUDGMENT DATE : 12/04/2003 APPLICANT Mr S Klinger, solicitor LEGAL REPRESENTATIVES: RESPONDENT Mr W O'Rourke, solicitor of Deacons JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10782 of 2003 Bly C 4 December 2003 Avi Rubinstein Applicant v Ku-ring-gai Municipal Council Respondent Judgment 1 . This appeal relates to Development Application No. 978/02 for the construction of a two storey attached dual occupancy development at lot 2 in DP 26931 being 22 Warrimoo Avenue St Ives. An existing single storey dwelling house on the site is to be demolished. 2. The site has a depth of about 61m, an area of about 1226 sq m with a gradual slope of about 5m from the street to the publicly owned Cowan Creek Bushland Reserve at the rear. 2 . The locality is characterised by one and two storey detached dwelling houses of varying architectural styles. The site is situated in the Residential 2(c) zone under the Ku-Ring-Gai Planning Scheme and under this scheme the proposal, comprising a residential flat building, would be prohibited. However, because dwelling houses are permissible with consent in the 2(c) zone, State Environmental Planning Policy 53 , Metropolitan Residential Development ("SEPP53") is applicable. Clause 18 of SEPP 53 thus permits, with development consent, the construction of a dual occupancy development on this site. 3 . The application was advertised and three submissions from adjoining owners were received. Subsequent re-notification resulted in one further submission. These submissions comprise objections to the proposal in relation to matters including streetscape, traffic, vegetation, overdevelopment, drainage and precedent. Following its consideration of an officer's report recommending refusal the council decided to refuse the development application for reasons relating to streetscape and character, height and visual bulk and solar access. 4 . On behalf of the respondent council expert evidence was given by Mr R Player, a town planner, and Mr B. Newbold, an architect and planner. 5 . On behalf of the applicant, expert evidence was given by Mr G Smith a town planner. The owners of the neighbouring properties at Nos. 20 and 24 Warrimoo Avenue gave evidence in relation to their concerns about the proposal during the site inspection. 6 . Having considered the statement of issues together with all of the evidence and having taken a view of the site and its environs I have decided that the issues for determination by the Court emerge from the aim in clause 3(1)(d) of SEPP 53 that the housing be of good design and are: (1) whether the proposal would be satisfactory in terms of the existing streetscape and the character of the locality; (2) whether the proposal would adversely affect the amenity of the adjoining dwelling houses in terms of daylight, sunlight and building bulk; (3) whether the southern dwelling within the proposal would have satisfactory amenity in terms of access to daylight and sunlight. 7 . In relation to streetscape, whilst he had no concerns that an appropriate attached two storey dual occupancy development could be erected on this site, Mr Player was concerned that this proposal would in the context of the locality have an uncharacteristic bulk and scale. This came about in part as a result of the position of the building on the site being too far forward. In this regard he was particularly concerned about the two double garages and the substantial paved areas associated with vehicle manoeuvring. It was his opinion that this is a large and unnecessarily imposing building being just over 16 m wide and this was unable to be mitigated because of the inadequate opportunities for the provision of screen landscaping especially down the sides of the building. Referring to clause 32(h) of SEPP 53 he contended that the proposal did not comply with the requirement to provide building setbacks that progressively increase as wall heights increase. Overall it was his opinion that the proposed building was not responsive to existing development in the area. 8. Mr Newbold had similar concerns and explained that notwithstanding that the building complied with the nine metre building line there were too many built elements in front of the effective building line generated by existing buildings on nearby allotments. The height and width would be plainly visible as would be the side elevations, to an observer in the street. He also pointed out that in his opinion there was not enough articulation and modulation of the building to mitigate its bulk and scale which would represent an abrupt contrast to other existing buildings in the street. Again, the two garages and their associated manoeuvring areas would dominate. 9 . In response Mr Smith explained that the Warrimoo Avenue streetscape was typical of Ku-Ring-Gai and that the street was the subject of transition from smaller homes as presently exist on this site to larger two storey homes and dual occupancies. He recognised that this proposal comprises a large building but there are limited viewing points for this. There are even fewer opportunities to view the full depth of the building taking into account the relationship of the building to the dwelling houses on the adjoining sites, the setbacks and the landscape proposal. In terms of bulk and scale the proposal is not very different to other more recent larger buildings in the street. Double garages with associated manoeuvring areas and open parking areas are not uncommon. 10 . Mr Smith did not accept that the building was deficient in terms of setbacks and modulation and pointed out the single storey garage elements at the front and the stepping back of the building at the upper levels. This stepping back also results in a stepping back of the roof form. It was his opinion that taking into account likely progressive changes in the street and given time for the landscape to mature the proposal will meld into the streetscape. 11. I agree with Mr Smith that oblique views of the proposed building would be limited by the existing adjoining dwelling houses and would be softened by landscaping. In this regard I am nevertheless concerned that the side setback of 1.545 m from the southern boundary to the study and garage in the southern dwelling would be insufficient to provide an adequate landscaped screen given that this width needs also to provide for a pathway and is constrained by the 1.8 metre high boundary fence. However, I see no reason why the setback here could not be increased by a further 300 mm to ensure more effective landscaping in this particular location. With such an increased setback and with the relocation of the southern edge of the driveway so as to align with the southern edge of the garage door opening, the width of the landscaped strip between the garage and Warrimoo Avenue could be increased by about 600 mm. Together these changes will facilitate improved landscaping and a better visual presentation from the south-east. Taking such changes into account and I accept the evidence of Mr Smith that the building is not excessively large is reasonably articulated and the front garden area which will be suitably landscaped will provide a reasonable and satisfactory landscaped setting for the development. 12 . Whilst this building will be significantly larger than its neighbours, it complies with the applicable height envelope and has a not unreasonable floor space of less than 0.5:1 which is indicative of the likely future of this street which I agree is in an albeit slow transition. I am not concerned that the garage structure for the northern dwelling with project beyond the building line established by the two adjoining dwelling houses occupying as it does a relatively small footprint. Taking also into account that the ground floor level will be some 2m below the level of the road it will not appear to be excessively large in the streetscape. 13 . In these circumstances I am satisfied that whilst the design could not be described as being great it is clearly adequate and represents a reasonable design standard and will contribute to an attractive residential environment as required by SEPP 53. It will clearly appear as being different especially by comparison with the two adjoining dwelling houses but I am satisfied that it will not be out of character with the streetscape generally. 14 . Turning now to the question of solar access, the existing dwelling house at 20 Warrimoo Avenue contains a study and a sitting room each having a north facing window. Whilst these windows are overshadowed from time to time by the existing dwelling house on the subject site the proposal will at the winter solstice result in the complete loss of this solar access. Both Mr Player and Mr Newbold believed that this impact was significant. Mr Smith disagreed explaining that the main living areas in the affected dwelling were at its southern end and were oriented east and west and thus obtained good access to sunlight. These windows would not be overshadowed by the proposal. He also argued that the consequences of the not unreasonable two storey development of east west oriented lots include overshadowing. In addition, he explained that the extensive overshadowing of the rear yard of number 20 would be significantly reduced by the proposed removal of a group of large conifers growing on the southern boundary of the site. 15 . Clause 32(c) of SEPP 53 provides that consent must not be granted unless adequate regard has been given to identified principles of solar access. More particularly, the proposed development should where possible ensure adequate daylight to the main living areas of neighbours in the vicinity and adequate sunlight to the substantial areas of private open space. 16 . It is clear that the two affected windows will as a result of the proposal suffer a reduction not only of sunlight but also daylight. However, bearing in mind that the proposed building will be between 2 and 2.5m away from these windows I am satisfied that they will receive adequate daylight. Clause 32(c) does not contain any requirement in relation to solar penetration into buildings and hence there can be no non-compliance with this clause. Instead adequate sunlight is required to be provided to substantial areas of private open space. In this regard there can be no doubt that the rear yard of No. 20 especially given the removal of the conifers from the site will meet this requirement. Whilst the loss of winter sunlight to the two affected rooms in No. 20 is undesirable and probably does not meet the Amcord requirement taken into account the fact that the main living rooms in this building are unaffected I accept that this impact does not attract such weight as to warrant refusal of the application. 17 . The residents of both No. 20 and 24 expressed concern at the likely bulky appearance of this development when viewed from their rear yards. Both Mr Newbold and Mr Player had similar concerns arguing that it would not meet the requirement of SEPP 53 in terms of maintaining reasonable neighbour amenity. In this context they also expressed concern in relation to the adequacy of the proposed side setbacks which range between 1.545 and 2.145 m. Within these setback areas, footpaths and screen landscaping beside the 1.8 m high fences are to be provided. Mr Smith was of the opinion that the proposed building would be in scale with the height of buildings in the vicinity notwithstanding that the two adjoining houses were only single storey. More particularly he pointed out that at the rear of the proposed building the height of the eaves is significantly less than would normally be the case for a two storey building. In this context he again referred to the strong likelihood that this area will continue to be progressively redeveloped and that such redevelopment is likely to comprise two storey buildings. 18. Whilst this building will project significantly further to the rear by comparison with the existing dwellings at Nos. 20 and 24 in terms of the total size of the site I do not accept that this is excessive. There is no doubt that the outlook from the rear yards of these two adjoining dwelling houses will be affected by this proposal which will have the appearance of at least a 1.5 storey building. When viewed from further to the west in the rear yards of these two adjoining properties the proposal will appear as being a not unreasonable two storeys. 19. I have not been persuaded that the presentation, of the building to the neighbours would be so unsatisfactory as to warrant refusal and have concluded that subject to appropriate landscaping which is capable of softening this presentation this aspect of the proposal is satisfactory. In this regard I agree that the relevant side setback at 2.145 m is sufficient to facilitate the proposed footpath and landscaping arrangement taking also into account the necessary 1.8 metre high boundary fence. Whilst the northern dwelling house would receive excellent daylight and sunshine the southern dwelling house will receive good daylight and its open space areas will receive excellent sunlight. In these circumstances, clause 32(c) of SEPP 53 which requires that there be adequate daylight to main living areas and adequate sunlight to substantial areas of private open space is met. 20. Mr Newbold and Mr Player were highly critical of the fact that the southern dwelling will receive very little sunlight into its rooms. A different design could have overcome this deficiency. 21 . Any direct solar penetration into the southern building during the period of autumn winter and spring would only be from the west into the kitchen and the family room. Mr Smith recognised the compliance with clause 32(c) of SEPP 53 and explained that there are always difficulties confronting developments on sites with a long east west axis. Whilst what proposed is probably not optimal taking into account the overall compliance with the SEPP 53 requirement and the orientation of the site I have not been persuaded that this should be a reason to refuse the application. 22 . The orders of the Court will therefore be that the appeal is upheld. Development Application No. 978/2 for the construction of a two storey attached dual occupancy development at lot 2 in DP 26931 being 22 Warrimoo Avenue St Ives is determined by the granting of development consent subject to the conditions set out in annexure A hereto which will be generated from exhibit 10 being the conditions which were not opposed together with an additional condition number 86 which will provide that the garage and the study in the southern most dwelling, residence one, shall be setback from the southern boundary of the site a distance of 1845 mm. The southern edge of the paved driveway shall be setback from the southern boundary of the site a distance of 2145 mm. Exhibits D and 10 will be retained. ____________________ 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.