Land and Environment Court of New South Wales CITATION : Buzrio Pty Limited v Ku-ring-gai Council [2009] NSWLEC 1413 APPLICANT Buzrio Pty Limited PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 10345 of 2009 CORAM: Bly C KEY ISSUES: DEVELOPMENT APPLICATION :- residential flat building, setbacks and site frontage, amenity and design of dwellings, common open space. Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development Residential Flat Design Code Development Control Plan No 55 - Ku-ring-gai Multiunit Housing DATES OF HEARING: 5, 6 and 12 November 2009 DATE OF JUDGMENT: 11 December 2009 APPLICANT Mr G Green (solicitor) SOLICITOR Pikes Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr P Marincowitz (solicitor) SOLICITOR DLA Phillips Fox JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 11 December 2009 10345 of 2009 Buzrio Pty Limited v Ku-ring-gai Council JUDGMENT Introduction 1 This appeal relates to a development application for the erection of a 3, 4 and 5 Storey residential flat building containing 45 dwellings above a 3 level basement with parking for 67 cars at 1179 Pacific Highway and 2 Warrangi Street Turramurra. The two dwellings on the site are to be demolished and a number of trees are to be removed. Whilst the development comprises a single building, the plans identify that part of the building on the northern 'leg' of the 'L' shaped site as Building A and that part of the building on the southern 'leg' of the site as Building B. 2 The corner site comprises lots 1, 4 and 5 in DP 16292 and has an area of 3,183 sq m. It has a frontage of 75.8m to the Pacific Highway, a frontage of 19.3 to Warrangi Street and a splayed frontage to the corner of these streets of 5.6 m. 3 Surrounding development predominantly comprises one and two storey dwelling houses. Adjoining Building A are the detached dwelling houses at No 1181 Pacific Highway (to the northwest) and Nos 4, 6 and 8 Warrangi Street (to the east and north). Adjoining Building B is the dwelling house at No 4 Warrangi Street (to the northeast). The Ku-ring-gai Planning Scheme Ordinance 4 The site is zoned Residential 2(d3) under the Ku-ring-gai Planning Scheme Ordinance and in this zone the proposal is permissible with development consent. Close by lands to the northwest and southeast on this side of the Pacific Highway are also zoned 2(d3) with the exception of the corner lots opposite the site in Warrangi Street that are zoned Residential 2(c). Adjoining lands to the rear of the site and lands opposite the site on the southwest side of the Pacific Highway are zoned Residential 2(c2). 5 Also applicable is State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development and the associated Residential Flat Design Code and Development Control Plan No 55 - Ku-ring-gai Multiunit Housing. Advertising 6 The application was advertised and 15 submissions were received. Matters of concern expressed in these submissions include: The proposed building does not comply with various applicable planning controls including frontage, setbacks, orientation, dwelling sizes and landscaping. Removal of canopy trees is inappropriate and there would be an insufficiency of replacement canopy trees. Amenity impacts on neighbours including noise, overshadowing and loss of privacy. Unreasonable constraints on development opportunities for neighbouring site. Vehicular access off Warrangi Street is too close to the Pacific Highway resulting in traffic safety issues. The bulk, scale and appearance of the proposed building is unsatisfactory. Excessive residential density and overdevelopment of the site. Unresolved drainage problems. 7 When the hearing began on-site I had the opportunity of hearing from several of the affected neighbours who explained in some detail the above-mentioned concerns. Written submissions in addition to original letters of objection were also provided. The contentions 8 According to the Statement of Facts and Contentions that contentions that are said to warrant refusal of the application are, in essence, as follows: The site's frontage to Warrangi Street does not meet the minimum frontage requirement. The proposed building does not provide the necessary 6 m site setback from the site's northeast boundary with No 4 Warrangi Street. The proposed building does not provide the necessary 10 - 12 m front setback from the Pacific Highway. The proposed building has an excessive western orientation. The design of the pedestrian entrances to the proposed building is unsatisfactory. The architectural design of the elevations to Building A is unsatisfactory in terms of mass and visual scale. An excessive number of dwellings in the proposed building will not have satisfactory solar access and cross ventilation. An excessive number of dwellings do not meet minimum area standards and have unsatisfactory circulation and layouts. An excessive number of balconies do not provide the required minimum area. The northern courtyard design is unsatisfactory and the provision of communal or common open space in the front setback area is inappropriate. A Sydney blue gum and a Himalayan cedar tree are at risk. The landscaped design including the provision of deep soil planting areas is unsatisfactory. Various traffic parking and servicing arrangements are unsatisfactory. Stormwater drainage arrangements are unsatisfactory. 9 Having reviewed all of the evidence in the light of the submissions made on behalf of the council I have decided that the important contentions for my determination comprise: Whether the site's frontage to Warrangi Street is sufficient and whether the front and side setbacks and whether the form and scale of Building B are adequate, considering the requirements of the DCP. Whether the architecture and presentation of the west elevation/facade of Building A's are satisfactory. Whether the amenity and design of the west facing dwellings in Building A is satisfactory. Whether the provision of common open space is appropriately located is reasonably accessible and has satisfactory amenity. The expert evidence 10 On behalf of the respondent council, expert evidence was provided by: Mr G. Youhanna - town planning. Miss J. Bautovich - urban design. Mr G. Bird - landscape architecture. 11 On behalf of the applicant expert evidence was provided by: Mr G. Chapman - town planning Mr D Mackenzie - architecture. Mr R Frew - landscape architecture. Mr R Kingdom -arboriculture Setbacks and site frontage of Building B 12 There are a number of common planning provisions that are relevant to the issues associated with building setbacks and site width. The design quality principles in Part 2 of SEPP 65 in dealing with built form and landscape together require good design outcomes taking into account the building's purpose, its built form and the integration of built form and sustainable landscaping for the benefit of the building's occupants and the public domain. The PSO contains similar objectives also dealing with landscaping within setback areas with emphasis on the protection of the canopy-tree character of Ku-ring-gai. 13 The good design elements in the DCP require that building should be predominantly aligned with the street to provide street edge definition and a consistent urban form. Development on corner sites should be aligned to both street frontages. 14 The DCP requires that multiunit housing should achieve a cohesive streetscape character through consistency in colours, materials and setbacks while allowing scope for contemporary architectural expression. Landscape principles seek the retention of existing significant vegetation and within new development the promotion of a tall canopy-tree character. Buildings are to be set behind gardens dominated by canopy trees that screen the building and soften the urban form. Side setback of Building B 15 The habitable rooms and balconies of the mainly three-storey Building B are set back 4 m from the site's common boundary with No 4 Warrangi Street. The council contends that this setback is unsatisfactory for a number of reasons that essentially comprise: It does not comply with the 6 m setback and the 12 m separation requirements in the DCP. There would not be sufficient space for the provision of essential landscaping (including deep soil planting and canopy trees), courtyards and access paths. The inadequate landscaping would cause the proposed building to have adverse privacy impacts on adjoining and nearby dwelling houses. Future development of the adjoining site at Nos 4 and 6 Warrangi Street would be unreasonably disadvantaged (this site is also zoned Residential 2(d3) and is suitable for redevelopment). 16 The setback requirements in Part 4.3 of the DCP require that the scale of buildings should be compatible with the desired streetscape character and should be compatible with the scale of development in the local context. Side and rear setbacks are required to be 6 m. In this regard the proposed setback is 2 m or 33% deficient. The design objectives of this setback requirement are: Buildings set behind gardens dominated by canopy trees which screen the buildings, soften the urban form and maintain the garden character of Ku-ring-gai. Adequate space between sites to enable effective landscaping, tree planting between buildings, separation of buildings for privacy and views from the street to rear landscaping. A high level of residential amenity with adequate separation between buildings on different sites for privacy, sun access, acoustic control and natural ventilation. A consistent urban form providing definition of the street edge. 17 The DCP design controls in Section 4.5.2 that deal with visual privacy require a minimum separation of 12 m between two habitable rooms for residential buildings up to four storeys whether between neighbouring buildings on a site or on adjoining sites. The design objectives of this separation requirement are: Visual privacy for residents and adjoining neighbours. Integration of architectural and landscape screening devices into the overall design of the building 18 It is also relevant to note that the 12 m building separation control can be varied depending upon whether rooms in opposing buildings are habitable or non-habitable. In particular a 9 m separation between a habitable room and a non-habitable room is permitted, as is a 6 m minimum separation between two non-habitable rooms. Such variations plainly rely on the notion that the privacy needs of habitable rooms are more important than non-habitable rooms. 19 The setback controls in the DCP are essentially consistent with the Primary Development Controls dealing with building separation at page 28 of the Residential Flat Design Code. It is to be noted however that the objectives of the controls in the RFDC not only deal with privacy but also overshadowing, the provision of open space and deep soil zones and importantly to "support the desired area character with appropriate massing and spaces between buildings". 20 Mr Youhanna and Ms Bautovich were of the opinion that the 6 m control in the DCP should be complied with because the inadequate setback would negatively impact on the development potential of the site at Nos 4-6 Warrangi Street taking also into account the 12 m building separation controls. A 12 m separation between this building and a building on the neighbouring site is necessary to achieve an appropriate built form separation and landscaping. The non-compliance will result in the neighbouring site needing to provide an 8 m setback to achieve the 12 m separation; this being an unfair burden. They also argued that because the setback was insufficient the constrained landscaping opportunities would be insufficient to mitigate the scale between the buildings. Mr Youhanna noted that the 33% non-compliance together with the non-compliance with the front setback control (discussed later) is an indication of the constrained nature of this part of the site that results in an inappropriate building design. 21 Mr Chapman disagreed suggesting that the neighbouring property would not be restricted because a building achieving the relevantly applicable floor space ratio could be designed for that site where that design, with a 6 m setback from the common boundary and a 10 m separation from the proposal could achieve an appropriate amenity. Mr Mackenzie provided a sketch plan for the development of Nos 4-6 Warrangi Street that would achieve such a separation. 22 Mr Chapman referred to the amended landscape plan with particular reference to the proposed tree plantings that he says will satisfy the objectives of the LEP and the PSO and would assist in providing an appropriate amenity for the existing neighbours. Also the separation between the proposed development and a future development on Nos 4 - 6 Warrangi Street would achieve an appropriate built form relationship and would, by presenting a reduced scale development to Warrangi Street comprise a suitable form of development in this secondary/local street and in relation to the heritage item opposite. Setback of Building A and B from Pacific Highway 23 Buildings A and B are predominantly setback between 9 m -11 m from the site's frontage to the Pacific Highway. The entry to the building is setback 7.4 m Building B has various setbacks (taking into account the building's stepped form and the site's angled frontage) of between 12.5 m (to the terrace) and 17 m (to the second floor bedroom) from Warrangi Street. The council contends that the setbacks from the highway frontage are unsatisfactory for a number of reasons including: Failure to comply with the setback requirement of the DCP. Failure to meet the objectives of the PSO and the DCP particularly in relation to streetscape character and the need to provide a consistent urban form. 24 The DCP design objectives for setbacks in the provide for buildings set behind gardens and dominated by canopy trees that will screen buildings and soften urban form so as to maintain the garden character of Ku-ring-gai. The associated design control requires a street boundary setback of between 10 m and 12 m and that no more than 40% of this setback zone may be occupied by building footprint. 25 Mr Youhanna and Ms Bautovich were of the opinion that compliance with the setback control is necessary so as to provide sufficient for landscaping that will set the building amidst greenery and soften the appearance of its facade consistent with the objectives of the PSO and the DCP. The non-compliance with both the front and side setback controls are strong indicators that the proposed building is not suitable for the site. Mr Youhanna also noted that the usual front setback for sites not fronting the Pacific Highway is 13 m -15 m and that the 10 m -12 m setback is a minimum that has been consistently applied to development fronting the Pacific Highway it would thus not be consistent with other residential flat development on the highway. 26 In response Mr Chapman argued that the landscape design for the Pacific Highway and Warrangi Street frontages together provides an adequate and appropriate screening of the proposed building such that the character of development fronting the Pacific Highway will be maintained. Here he refers in particular to four existing mature canopy trees that are to be retained plus an additional seven canopy trees that are to be planted together with a variety of other shrubs and understorey plantings. Minimum street frontage 27 Clause 25I of the PSO contains certain site requirements and minimum development standards for multiunit housing including deep soil landscaping and street frontages. Subclause (3) contains a minimum street frontage standard of 30 m for sites having areas in excess of 1,800 sq m. The relevant heads of consideration for the development standards in clause 25I in subcl (1) include: (a) The desirability to provide a high proportion of deep soil landscape to the site area, (b) The impact of any overshadowing, and any loss of privacy and loss of outlook, likely to be caused by the proposed development, (c) The desirability to achieve an appropriate separation between buildings and site boundaries and landscaped corridors along rear fence lines, (d) The environmental features that are characteristic of the zone in which the site is situated by requiring sufficient space on-site for effective landscaping, (e) The desirability of adequate landscaping so that the built form does not dominate the landscape. 28 Where Warrangi Street and the Pacific Highway intersect, the site has a splayed corner making it difficult to determine the site' s actual frontage dimension with respect to this development standard. Mr Chapman nevertheless says that the frontage to Warrangi Street is 24.87 m and both he and Mr Youhanna agreed that the frontage being less than 30 m does not comply with the development standard. In this context I note that the southeast leg of the site has a width of (by scale) a little less than 21 m. An objection pursuant to State Environmental Planning Policy No. 1 - Development Standards has been provided. 29 The SEPP 1 objection (prepared by Mr Chapman) acknowledges a 5.13 m non-compliance with the 30 m development standard and by reference to the applicable residential zone objectives that relate to landscaping with emphasis on retention of existing trees and the planting of canopy trees, compliance with the standard is considered to be unreasonable and unnecessary. More particularly the zone objectives are said to be met taking into account the extent of deep soil planting provided the number of trees that are to be planted and the absence of any unreasonable amenity impacts on neighbours. Also relevant is that compliance with the 35% built upon area control in cl 25I(6) and the potential 9 m separation (now 4 m+6 m = 10 m) from a prospective development on the neighbouring site would provide a satisfactory outcome. The objection notes the absence of objectives for the standard and identifies "general planning principles applied to a minimum street frontage" that it says are complied with: Provide adequate site dimensions to accommodate a building envelope of suitable scale and in accordance with development controls for the 2(d3) Residential zone. Maintain streetscape presentation and area for landscaping/tree planting. Ensure adequate separation between buildings can be achieved. Ensure suitable vehicle access can be achieved. 30 The objection goes on to argue that the development standard is unreasonable and unnecessary because: an adequate deep soil landscape area has been provided; the streetscape presentation is acceptable; that Warrangi Street setbacks will ensure a consistent alignment in that Street; the three-storey presentation to Warrangi Street will minimise visual scale of development; development of the adjoining site at Nos 4 - 6 will not be restricted; adequate separation between the proposed building and future development at Nos 4 - 6 can be achieved for landscaping, overshadowing and privacy; and there will be no restriction on the orderly and economic development of land generally. 31 Mr Chapman emphasises that the reduced with frontage does not restrict the achievement of adequate landscaping whereas Mr Youhanna in referring back to the side setback non-compliance says that there would be a restriction and that the otherwise required 6 m setback would allow large canopy trees. Both Mr Youhanna and Ms Bautovich were also concerned that the site width does not permit orderly development and that the proposal would create a poor built form as a consequence of the setback noncompliances. Mr Youhanna was of the opinion that the SEPP 1 objection was not well founded and that the undersized frontage is directly related to the inability to comply with the front and rear setback controls with their consequent impacts on the adjoining site and the ability to provide adequate landscaping. Court's conclusions: setbacks and site frontage 32 When viewed from Warrangi Street Building B presents itself as a creature of the site's width and the architect's attempts to meet the setback requirements of the DCP. The actual setbacks from the Pacific Highway and from the site's common boundary with No 4 Warrangi Street together exhibit a deficiency of 3 m. Also to be taken into account here is the site's frontage deficiency of, according to the SEPP 1 objection, more than 5 m. In this regard it is to be noted that Warrangi Street intersects with the Pacific Highway at an angle of about 55° resulting in the effective width of the site being about 21 m and this exacerbates the non-compliance with the 30 m site frontage development standard in the LEP. In my opinion these deficiencies are significant. 33 Taking into account the landscape expert's agreement it is apparent that the applicant's landscape planting regime for the site would be successful notwithstanding the noncompliant building setbacks and site frontage and a hypothetical building at Nos 4 - 6 Warrangi Street set back 6 m from the common boundary. In this regard I note that there will be a total of 30 canopy trees capable of achieving a mature height in excess of 13 m. 34 Also, there would be sufficient space for the proposed trees to grow and produce 8 – 12 m high canopies that could occupy the space between the Building B and the hypothetical neighbouring building. The proposed canopy trees to be placed between Buildings A and B and the Pacific Highway and Warrangi Street to supplement the existing canopy trees would also be successful. Whilst I can understand concerns that the driveway entrance into the basement will occupy a significant proportion of the site's width I accept that the proposed landscaping insofar as the development presents itself to the Pacific Highway and Warrangi Street would provide an appropriate setting for both Building A and B. I also accept Mr Macdonald's opinion that the Pacific Highway presentation of the two buildings in this landscape setting would of itself be satisfactory. 35 Despite these conclusions, and notwithstanding that the DCP does not require it, I understand and accept the concerns of Mr Youhanna and Ms Bautovich that Building B, positioned on the corner of the Pacific Highway and Warrangi Street needs to have a strong built form and corner presence despite being opposite a low scale heritage item. Whilst Mr Macdonald explained that Building B was a subtle and sensitive response to the heritage item I nevertheless agree that it would be inappropriate because it fails to provide an appropriate degree of building definition at the corner. The narrowness of the building that prevents it from providing a strong presence plainly results from the architect's response to the setback requirements in the DCP and the narrowness of the site. But this is no answer to the need for a corner built form definition on the corner of Warrangi Street and the Pacific Highway that is stronger than presently proposed. 36 As regards the setback of Building B from its common boundary with No 4 Warrangi Street I agree with Mr Youhanna and Ms Bautovich that this would impose an unfair burden or constraint on the development potential of the site comprising Nos 4 - 6 Warrangi Street. Should the owners of that site seek to develop it in such a way that there were habitable rooms on the south side, a 6 m setback from the boundary would be required for landscaping, privacy solar access, acoustic control and natural ventilation purposes. Given the width of that site such a setback could be readily achieved. However this requirement needs to be considered together with the visual privacy requirement in the DCP that there be a 12 m separation between habitable rooms and the same requirement in the RFDC for the purposes of: ensuring an appropriate massing and spacing of buildings; providing visual and acoustic privacy; controlling overshadowing; the provision of deep soil zones; and the provision of open space. In these circumstances if a hypothetical building were to be built on Nos 4 - 6 Warrangi Street 6 m from the boundary this would give a building separation of 10 m and although a reasonable landscaping of this space would be possible I am not convinced that such a separation would be acceptable. I have reached this conclusion taking into account the above-mentioned purposes that should not be lightly set-aside especially as these adjoining sites are for present purposes undeveloped. Hence, as Mr Youhanna explained if Building B were to be built in its presently proposed location the development of Nos 4 - 6 Warrangi Street would need to provide an 8 m setback to achieve the 12 m separation. 37 Even if a hypothetical building for Nos 4 - 6 Warrangi Street were to entirely comprise non-habitable rooms on the south side (which seems unlikely to me) the RFDC provides for a (reduced) 9 m separation between a habitable room and a non-habitable room. The DCP also allows the same separation for the purposes of visual privacy. In such circumstances the hypothetical building would need to provide a 5 m setback so that together with Building B's 4 m setback the 9 m separation is achieved. Again, this would be unfair as it would be reasonable to expect that the 9 m separation be apportioned so that the site containing the habitable rooms should provide 6 m and the site with the non-habitable rooms should provide 3 m. Moreover the DCP still requires a 6 m setback on both properties again for the purposes of ensuring a high level of residential amenity. 38 I have therefore decided that for reasons of failure to meet the site and setback requirements of the LEP, the DCP and the RFDC, the application should not be approved. For similar reasons the SEPP 1 objection is not upheld. Amenity and design of dwellings and common open space 39 The issue of whether the amenity and design of the dwellings on the west side of Building A is satisfactory involves questions of orientation, energy efficiency, ventilation, dwelling configuration and the "depth" of the dwellings. The essential issue associated with common open space is whether it has poor amenity taking into account size, configuration, solar access and location. Orientation 40 Section 4.5.1 of the DCP deals with solar access to dwellings and seeks to reduce reliance on artificial light and improve energy efficiency and residential amenity. The design objectives seek the natural lighting of all living spaces. Associated design controls require that not more than 15% of all dwellings within a development should be "single-aspect with a western orientation". 41 Of the 45 proposed dwellings in Buildings A and B, there are 12 single-aspect dwellings on the west side of Building A. Hence 27% of the dwellings in the whole development are single aspect. 42 The experts disputed the orientation of the 12 single-aspect dwellings. Mr Chapman and Mr McKenzie noted that whilst the dwellings are on the west side, the building is articulated such that the terraces and living/dining areas also have a northwest orientation thus ensuring that there is adequate natural light for the living spaces within the dwellings. Mr Youhanna and Ms Bautovich disagreed arguing that these dwellings have a "west/north-west orientation". Whilst they may comply with the DCP in relation to solar access they will nevertheless receive low western sun in summer, which will unpleasantly heat the dwellings that, because of their design have no means for hot air to escape. This will result in poor amenity for the dwelling occupants. 43 In addition, Mr Youhanna contends that the unsatisfactory aspects of a further 11 dwellings on the west side of the building should be taken into account. Of these there are four dual-aspect dwellings that have a second orientation to the southwest and seven dual-aspect dwellings (including 3 dwellings at the penthouse level) that have their living areas on the west side of the building and bedrooms on the east side. These 11 dwellings plus the 12 single-aspect dwellings comprise about half of all of the proposed dwellings that have reduced or unsatisfactory amenity as a result of their orientation. Solar access and ventilation 44 Part 03 of the RFDC and contains relevantly applicable "rules of thumb" that for purposes of environmental performance, particularly natural ventilation provide that: Single aspect apartments should be limited in depth to 8 m from a window. The back of the kitchen should be no more than 8 m from a window. 60% of residential units should be naturally cross-ventilated. 25% of kitchens within a development should have access to natural ventilation. 45 The experts agreed that the 12 single-aspect dwellings (27% of the 45 dwellings) have a depth greater than 8 m and are thus noncompliant. Also 8 dwellings (18% of the 45 dwellings) have the back of their kitchens more than 8 m from a window. Conversely the 60% rule of thumb for cross-ventilated dwellings and the 25% rule of thumb for kitchens having access to natural ventilation are met. 46 Mr Youhanna and Ms Bautovich explained that the principle of the 8 m rule of thumb in the RFDC is to ensure an appropriate level of amenity for single aspect dwellings; the greater the depth of the dwelling the more likely it is that hot air will be trapped, making the dwelling stuffy and hot in summer. Also because the dwellings are deeper than 8 m they will not achieve adequate natural light. Ms Bautovich was concerned that the non-compliance with these individual elements would result in a cumulative environment within the dwellings and would thus have poor amenity. This is contrary to the need for higher density development to have higher amenity to compensate for the number of people living in close proximity. 47 In response Mr Chapman emphasised that the areas of the dwellings beyond 8 m are laundries, bathrooms and storerooms and are thus of less concern whereas the main living rooms and bedrooms, given their orientation, will have adequate daylight access and ventilation. He also explained that although the distance from the back of the kitchens to a window is between 9 m and 12.5 m, this is a minor variation. Taking into account the open plan arrangements this will facilitate adequate ventilation for the kitchens. 48 The experts also agreed that 70% of the dwellings would receive a minimum of three hours of solar access at the winter solstice thus meeting the solar access rule of thumb in the RFDC. Dwelling configuration 49 The experts agree that seven of the proposed dwellings do not meet the rule of thumb for unit sizes in the RFDC. They also agree that 11 of the dwelling's balconies do not meet the minimum area and/or width requirements in the DCP. 50 Mr Chapman said that the floor area noncompliances areminor, being between 0.3 sq m and 4 sq m. Relevantly this contributes to the development's response to housing affordability. He also explained that if these deficiencies were of sufficient concern an internal redesign could be carried out to achieve compliance without changing the building's envelope. 51 Mr Youhanna and Ms Bautovich did not accept that affordability was relevant in this case. They were, in relation to dwelling sizes, more concerned that there were too many apartments that were generally poorly configured and would not be able to be furnished in a practical fashion. They were also concerned at the number of balconies that comprise the principal private open space for the dwellings were substandard. 52 In response Mr Chapman said that the layouts of the dwellings were workable and that the balconies would be of sufficient size to be functional and could accommodate a table and chair arrangement. They are directly accessible from and can be used in conjunction with the main living areas. Common open space 53 The proposal generally provides common open space around the site between the two buildings and the site's boundaries. The contentions suggest that the area of principal (ie the largest proportion of the total) common open space for this development is located within the site's frontage to the Pacific Highway where there is a higher level of ambient traffic noise and poor solar amenity due to the southerly aspect. As a consequence this open space would have poor residential amenity. 54 Mr Chapman believed that the provision of common open space throughout the site was satisfactory. He noted that there is a total area of 1,195 sq m generally divided between the front and rear of the site. This provision significantly exceeds the 30% requirement in Part 4.5.5 of the DCP. These areas also meet the requirements of the DCP by providing areas for deep soil planting, having appropriate solar access and being easily accessible for residents and visitors. 55 Mr Youhanna and Ms Bautovich said that the only usable areas of common open space at the rear of the site have areas substantially less than the area calculated by Mr Chapman because the narrower areas for example along the side boundaries of the site should be excluded. Moreover the larger areas adjacent to the Pacific Highway would not provide the high level of amenity in terms of fresh air and daylight/sunlight, visual privacy and opportunities for recreation and socialisation as required by the DCP. Court's conclusions: amenity, design of dwellings and open space. 56 Whilst I understand Mr Chapman's argument that the dwellings on the west side of Building A have, by virtue of the building is configuration a northwest orientation I nevertheless agree with Mr Youhanna and Ms Bautovich that these dwellings have, for the purposes of the DCP, a generally western orientation. I thus accept their evidence that these dwellings would be affected by low western sun in summer. I thus accept that more than 15% of all dwellings within the development are single aspect with a western orientation. Compounding this concern are the 11 other dwellings that have living areas with the same orientation. 57 It is plain that the 12 single aspect dwellings do not comply with the 8 m depth requirement in the RFDC. However in my opinion most of the exceedences are relatively minor and mainly involve corridors bathrooms and laundries as distinct from living areas. Conversely I agree that those dwellings where the kitchen walls are up to 12.5 m from a window are of concern. As regards the sizes of the dwellings and whilst I accept that the deficiencies are minimal I agree with Mr Youhanna and Ms Bautovich that some of the dwellings are poorly configured and the living areas would be difficult to furnish. Similarly I am not greatly concerned that some of the balconies do not meet the minimum width requirement but accept that they would be more usable if they were to comply. 58 Whilst any one of these deficiencies by itself may not have been fatal to this application I am concerned that there are a number of dwellings within Building A that individually suffer as a result of not just one but several noncompliances. Added to this is the range and number of noncompliances notwithstanding that some are minor that result in them together becoming significant. 59 Given the DCP's requirement that 30% of the site is to be common open space principally for tall tree planting it would be unreasonable to require that 30% of the site should be set aside for recreation and socialising. Hence, given the exceedence of this requirement there is no great need for the common open space areas along the frontage of the site (identified as areas A and B) to be necessarily relied upon for recreation purposes. Although these areas would have poor amenity for recreational use by residents, because they achieve the tall tree-planting objective, this is not a matter of concern. Despite this I accept, that the common open space areas at the rear of the site (identified as area D) that amount to 352 sq m could, if suitably configured, be sufficient for recreation purposes especially given its northerly orientation and the acoustic benefit that results from its distance from the Pacific Highway. Unfortunately however, these areas seem to be not much more than "leftover" spaces around the sides of the building rather than being an open space area that is purpose designed for recreation and socialising. Also these spaces are located a considerable distance from the dwellings in Building B. In this regard, I would not include the relatively narrow areas at the sides of Building A for recreation purposes and conclude that the private open space provision for recreation purposes is unsatisfactory. Conclusion 60 In my opinion the proposed building would sit comfortably in its landscaped setting and provide a satisfactory even quality architectural presentation to the Pacific Highway. Despite this, as discussed above this development should not be approved because of its failure to meet certain requirements of the LEP, the DCP and the RFDC involving a range of site, dwelling, amenity and open space requirements. Whilst I accept that the proposal complies with the otherwise applicable controls in the planning instruments this does not obviate these significant and determinative deficiencies. Orders 61 For the above reasons the orders of the Court are: 1. The appeal is dismissed. 2. The development application for the erection of a 3, 4 and 5 storey residential flat building containing 45 dwellings above a 3 level basement with parking for 67 cars at 1179 Pacific Highway and 2 Warrangi Street Turramurra is determined by refusal. 3. Exhibit A is 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.