Land and Environment Court of New South Wales CITATION : Kaligem Pty Ltd v Ku-ring-gai Council [2007] NSWLEC 825 APPLICANT Kaligem Pty Ltd PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 10600 of 2007 CORAM: Hoffman C KEY ISSUES: Development Application :- Construction of a 5-Storey residential flat building, landscaping, car parking, deep soil provision, streetscape, adjoining heritage item, zone interface. Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No. 1 LEGISLATION CITED: State Environmental Planning Policy No. 65 - Design quality of residential flat development Ku-ring-gai Planning Scheme Ordinance Development Control Plan No. 55 - Railway/Pacific Highway Corridor & St Ives Centre Development Control Plan No. 40 - Construction and Demolition Waste Management DATES OF HEARING: 12-14/11/2007 DATE OF JUDGMENT: 19 December 2007 APPLICANT Mr Green, solicitor of Pike Pike and Fenwick LEGAL REPRESENTATIVES: RESPONDENT Mr P. Rigg, solicitor of Deacons JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 19 December 2007 10600 of 2007 Kaligem v Ku-ring-gai Council JUDGMENT 1 This is a Class 1 appeal no. 10600 of 2007 between Kaligem Pty Ltd and Ku-ring-gai Council in regard to the refusal of a development at Nos 1-9 Buckingham Rd, Killara, on the corner with the Pacific Highway. The proposal includes: o Demolition of the existing four residences situated on each allotment, including the removal of outbuildings, two swimming pools, the felling of trees and the removal of driveways and other paved areas. o The construction of a 5 storey residential flat building consisting of a single building constructed as a dual core or split level design with two entry foyers. The building comprises a single level of basement car parking with 57 parking spaces for residents and 9 visitor parking spaces (inclusive of 4 disabled parking spaces), storage areas and garbage collection room. The proposed units are situated over 5 levels and consist of 6 x 1 Bedroom apartments, 12 x 2 Bedroom apartments and 18 x 3 Bedroom apartments. o Landscape works including the removal of twenty seven (27) trees and tree replenishment including an additional thirty-seven (37) trees. o Associated site works including the construction of a variable width driveway and crossover that go beneath the reconstructed public footpath into the basement, new retaining walls and garden beds, construction of a boundary fencing along Buckingham Road and Pacific Highway and drainage works. The proposal as amended 2 The amended development application seeks consent for the demolition of existing structures and the construction of a residential flat development comprising 36 units, basement car parking for 66 vehicles and associated drainage works and landscaping. 3 The subject plans are: Revay & Unn architects dated 10 September 2007 and numbered DAOOC to DA20C inclusive (all issue C), and Botanica (Dwg. LP.01 C - Sheet 1 of 1), and a State Environmental Planning Policy No. 1 Objection prepared by James Lovell & Associates Pty Limited, September 2007. 4 The Issue B plans were amended just prior to this hearing and the changes, in Issue C are: 1) Modified Basement layout to enable more tall trees to be planted 2) Modified Buckingham Rd retaining walls / terraces to enable more tall trees to be planted 3) Modified Landscape Plans to increase the number of Tall Trees and the proportion of trees that are Blue Gum High Forest species (BGHF) 4) Removed the Acoustic Barrier Fence west of the entrance to 1-3 Buckingham Rd. 5) Reduced the bulk of the building by increasing the western setbacks of the 3rd and 4th floors, to comply with the heritage setback controls. 6) Separated the roof forms and the facade treatment of the southern elevation to clearly identify the juncture point between the two buildings. 7) The east facade facing the highway was "enlivened" by the introduction of windows and more detailed facade treatments. 8) Modified the Strata plan to enable the boundary planting to be maintained on common property and allow for external circulation space for common maintenance. 9) Created more detailed shadow diagrams a. 1:200 Scale b. Separate diagrams for existing shadows and proposed shadows 10) Provided additional information on the plans a. Provided the RLs on the ground floor plan courtyards b. Added indicative window dimensions and sill heights to elevations c. Added indicative RLs of Eaves, Ridges and Floor Levels to elevations d. Added Room Names to the cross sections e. Show interpolated RLs from survey at relevant points on Western boundary of building f. Show RLs on elevations. The Site 5 The site is comprised of four properties being Nos 1, 3, 5 and 9 Buckingham Road, Killara. Together they form an irregularly-shaped parcel with frontages to the Pacific Highway and Buckingham Road and a total site area of 3304.20m2. 6 The frontage to Buckingham Road (south boundary) is approximately 89 metres while the frontage to the Pacific Highway (east boundary) is 45 metres. The site has a side boundary of 40.6 metres to No. 11 Buckingham Road to the west and a boundary to No. 576 Pacific Highway to the north of 71 metres. 7 The site falls away from the Pacific Highway frontage with a slope of approximately 4.6% from the west to east with a fall of 3.3m. The site also has a cross fall of approximately 4.9% from north to south with an approximate fall of 2m to Buckingham Road. The front of the site adjoining No. 9 Buckingham is elevated above the street with a 2-3 metre high embankment existing between the street boundary and an unformed gutter. 8 The site contains 4 detached residences. Existing driveway access is provided to each lot from Buckingham Road. Entry and exit to Buckingham Road from the Pacific Highway is not controlled by traffic lights, however there is a light controlled pedestrian crossing located adjacent to the eastern property boundary. 9 A total of forty-four (44) trees are located on or in close proximity to the site. Adjoining and Adjacent Properties 10 The adjoining property to the west, being No. 11 Buckingham Road, is occupied by a detached single storey dwelling, identified in the KPSO as being as a heritage item of local significance. This property is zoned Residential 2(b). 11 The adjoining property to the north, being No. 576 Pacific Highway is occupied by a four storey residential flat building. This property is zoned Residential 2(d). 12 Land situated opposite to the south, being Nos 2 to 8 Buckingham Road, contain detached dwelling houses and are zoned Residential 2(d3). At the time of the hearing these were approved for redevelopment by a 5-storey block of flats, containing 31 units and 49 carspaces in a 3 level basement carpark. 13 Other land situated opposite the development on the southern corner of Marian Street and the Pacific Highway are currently under development as residential flat developments. 14 Land situated opposite the development on the northern corner of Marian Street and the Pacific Highway is identified in the KPSO as being as a heritage item of local significance. This property is zoned Residential 2(b). Applicable Statutes and Controls 15 State Environmental Planning Policy No. 65 - Design quality of residential flat development (SEPP 65): o Principle1 Context o Principle 2 Scale o Principle 3 Built form o Principle 5 Resource, energy and water efficiency o Principle 5 Landscape o Principle 10 Aesthetics 16 Residential Flat Design Code: o Part 1 Local Context o Part 2 Site Design o Part 3 Building Design 17 Ku-ring-gai Planning Scheme Ordinance (KPSO): o Site is zoned Residential 2(d3) o Clause 25C(1) and (2) Aims and objectives o clause 25D(2) Residential zone objectives and impact on heritage; o clause 25I Site requirements and development standards for multi-unit housing o clause 25I(2) - Deep soil landscaping o clause 25I(7) - Limit on floor area of top storey o clause 25L - Zone interface o clause 61 E - Development in the vicinity of heritage items 18 State Environmental Planning Policy No. I (Development Standards) (SEPP 1) 19 Development Control Plan No. 55 - Railway/Pacific Highway Corridor & St Ives Centre (DCP 55) o Part 3 Local context o Part 3.2 Desired Future Character o Part 3.3 Landscape and Visual Character, Design Objectives 0-1 and 0-3, and Design Controls C-1, C-4, C-6, C-8 and C-10. o Part 3.5 Development within the Vicinity of a Heritage Item, Design Objectives 0­1, 0-2, 0-3 and 0-4, and Design Controls C-1, C-2, C-3, C-4 and C-5. o Part 4 Design principles and controls: o Part 4.1 Landscape Design, Design Objectives 0-1, 0-2, 0-3, 0-4 and 0-6, and o Design Controls C-1, C-2, C-4, C-5, C-7 and C-8, o Part 4.3 Setbacks, Design Objectives 0-1, 0-2, 0-4, 0-5 and 0-6, and Design o Controls C-1, C-3, C-5, C-6, C-7, C-8 and C-9, o Part 4.4 Built Form and Articulation, Design Objectives 0-1, 0-2, 0-3, 0-4, 0-5 o and 0-6, and Design Controls C-1, C-2, C-3, C-4, C-5, C-6, C-7, C-8 and C-9, o Part 4.5 Residential amenity: o Part 4.5.1 Solar access, Design Objectives O-1 and 0-2, and Design o Controls C-1, C-2, C-3, C-4, C-5 and C-6 o Part 4.5.2 Visual Privacy, Design Objectives O-1 and 0-2, and Design o Controls C-1, C-2 and C-3. o Part 4.5.4 Internal amenity, Design Objectives O-1, 0-2 and 0-3, and Design Controls C-1, C-2, C-3 and C-4. o Part 4.5.5 Outdoor living, Design Objectives 0-1, 0-2 and 0-3 in respect of private open space and 0-4 and 0-5 in respect of common open space, and Design Controls C-1 and C-2 in respect of private open space and C3, C-4, C-5, C-6, C-7, C-8, C-9. C-10 and C-11. o Part 4.8 Building sustainability: Part 4.8.3 Waste management, Design Objectives O-1 and 0-2, and Design Controls C-1, C-2, C-3 and C-4 and the Provisions of DCP 40 · Part 5 Parking and Vehicular Controls, Part 5.1 General Controls, Design Objective 0-2. 20 Development Control Plan No. 40 - Construction and Demolition Waste Management 21 Section 34 Conference was heard by Commissioner Hoffman, following which amended plans (Issue C) were lodged. Amended plans have been re-notified. The Contentions 1. Setbacks The proposal presents significant variations to required setbacks under DCP 55 to Buckingham Road, to the Pacific Highway and to the northern boundary. The variations mainly occur at basement level (although there are some minor variations above ground level as well). The main implication of these breaches goes to the capacity of the proposal to support sustainable development and substantial tree planting of a scale commensurate with the established and desired future character of the locality and with the significant scale of the development itself (see Item 3). The maintenance and promotion of a dominant landscape setting is essential to the fundamental and defining character of Ku-ring-gai and this locality. Failure to ensure such a landscaped setting in the long term would produce an environmental outcome inconsistent with the KPSO and DCP 55. The variation needs to be assessed together with the significant variation presented to the development standard set out in the KPSO for deep soil landscaping (see Item 2. below). Each variation is significant and compounds and reinforces the impacts of the other. Particulars a. The proposed basement level is set back a minimum of 3.6m to Buckingham Road where a setback of between 10-12 metres is required by DCP 55 Section 4.3 C-1(b). This limits the potential for effective and sustainable deep soil zones and tall tree canopy as required by the KPSO and DCP 55 with consequent adverse impact on Buckingham Road and Pacific Highway streetscape. b. The proposed basement level is setback a minimum of 6.1m, to the Pacific Highway where a setback of between 10-12 metres is required by DCP Section 4.3 C-1 (b). This limits the potential for effective and sustainable deep soil zones and tall tree canopy as required by KPSO and DCP 55 with consequent adverse impact on the Pacific Highway streetscape. c. The value of deep soil planting in the setbacks is further compromised by encroachment by private courtyards and paved access ways, including development inconsistent with DCP 55 Section 4.3 C-7 and C-8. d. The proposed basement level is setback 4 metres along the northern side boundary with No. 576 Pacific Highway, where a minimum setback of 6.0 metres is required under DCP 55 Section 4.3 C­1(a). This prevents establishment of a sustainable tall tree canopy within deep soil zones. e. The reduced depth deep soil planting zones and compromised capacity to ensure a substantial landscaped setting for the development in the long term exacerbates concerns particularised under Item 3, as to the adverse impacts of the proposal's bulk, scale, and design on the streetscape. f. The non compliant setbacks are inherently linked with a design approach (i.e. provision of a single level basement) which also results in a variation to a development standard relating to deep soil planting in the KPSO. The proposal provides a deep soil landscaping area of 38.9% which is 366.8m2 less than the minimum 50% deep soil landscaping area required by clause 25I(2) of the KPSO. g. Appropriate weight should be afforded to the provisions of DCP 55 as a properly founded town planning document incorporating an expression of Council's intent for the planning of its area, in accordance with the planning principles set out in Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254. The variations to the setbacks are unreasonable and unnecessary as a dual level basement would permit compliance with the setback requirements of DCP 55. h. The contribution of tall upper canopy trees is one of the defining characteristics of Ku-ring-gai's character and is evident in the local character surrounding the subject site. The setback controls under DCP 55 Part 4.3 assist in ensuring this character is able to be sustained in the long term, supporting the objectives and planning provisions of the KPSO 25C(1)(a),(c), (2)(b), (d) and Clause 25D(2)(a),(b),(c) and (d) and supporting the Desired Future Character set out in Part 3.2 of DCP 55. i. The proposal is inconsistent with the SEPP 65 Principles 1, 5 and 6 (Clauses 9, 13, 14) for context, resource energy and water efficiency and landscaping, in that it fails to adequately respond to the context of the site which requires a sustainable tall tree canopy to be maintained and fails to provide substantial deep soil zones consistent with sustainable planning objectives. The proposal is inconsistent with, Part 3 of the Residential Flat Design Code. 2. Variation to Clause 251(2) KPSO Deep Soil landscaping and impact on landscape character The proposed development presents a substantial (11.1 % or 366.8m2) non compliance with the amount of deep soil planting required by Clause 25I(2) of the KPSO and the applicant has not demonstrated that an objection under SEPP 1 should be supported. Particulars a. The proposal provides a deep soil landscaping area of 38.9%% which is significantly (11.1% or 366.8m2) less than the minimum 50% deep soil landscaping area required by clause 25I(2) of the KPSO. b. The objection under SEPP 1 is not well founded because: i. The SEPP 1 objection submits that areas underlain by car parking basement fulfil the objectives of the standard, notwithstanding that the definition of `deep soil landscaping' explicitly excludes areas that are occupied by a structure `whether below or above the surface of the ground'. In using these precise terms, the KPSO contemplates the prospect of areas underlain by structure and makes clear these areas are not to be included. By deduction, such areas do not meet the objectives of the standard. ii. The submission that the non compliant areas are contiguous with compliant areas, thereby increasing their utility, does not demonstrate a particular circumstance that would warrant variation. It would be open to virtually any residential flat development in Ku-ring-gai local government area to adopt the same design mechanism, using a single level basement instead of a multi level basement with reduced footprint. This submission also fails to acknowledge the impact of the proposal's private courtyards and access ways in further fragmenting the deep soil planting area. M. The submission that soil located upon structure has the same utility as a deep soil landscaped area is not concurred with. The objectives for deep soil planting go to the long term sustainability of planting supported on an unimpeded volume of soil mass - particularly planting of taller canopy species consistent with the character of the locality and the objectives of the KPSO and DCP in respect of same. iv. The sustainability of planting within substantial soil masses is a planning issue related to resource, energy and water efficiency objectives in accordance with Principle 5 (Clause 13) of SEPP 65. The failure of the proposal to comply is contrary to these principles. v. The SEPP 1 submission to the effect that less excavation is required for a single level basement ignores the offsetting disadvantages of a larger building footprint, and essentially challenges the standard, as opposed to presenting particular circumstances justifying variation in this instance. The fact the site has a slope, with parking introduced at the lower level, is not a particular circumstance of this site or design and is relatively commonplace. vi. As the site is situated in an area that is dominated by tall tree planting, the level of non-compliance with the deep soil landscaping requirements of clause 25I(2) of the KPSO is such that the development does not respect either the existing built character nor the desired landscape character envisaged by the KPSO - these representing fundamental aims and objectives of the instrument and the development standard (as set out in Clause 25C(1)(a), Clause 25C(2)(b) and (d) and Clause 25D(2)(a), (b), (c), (d) and (e)). vii. The SEPP 1 submission has not demonstrated that it would be unreasonable or unnecessary to achieve compliance. Compliance can be achieved - as with many developments in Ku-ring-gal - by using a dual level basement. viii. The proposal is inconsistent with Parts 3, 4 and the principles of Parts 3.2, 3.3 and 4.1 of DCP 55, Principles 1 and 6 of SEPP 65 and Part 1 and 2 of the Residential Flat Design Code. 3. Streetscape (Visual Bulk and Scale) The development is excessive in terms of its bulk and scale and would dominate the streetscape of Buckingham Road and Pacific Highway by virtue of its lack of significant articulation, the bulky, monolithic configuration of its built form, poor resolution of the facades, excessive building length and inadequate setbacks. Particulars a. The proposed building has a width fronting Buckingham Road of 59.6 metres, exceeding the DCP 55 control of 36m, without any significant break in the building facade, resulting in an unacceptable and imposing bulk to the street (C-3 of Part 4.4 of DCP 55). b. The application states that the development has been designed as two separate `blocks', however the building is not articulated so as to give any real impression of two blocks or two buildings. The length of the building façade would have a highly visible and dominant presentation to Buckingham Road, especially since the building is on the high side of the street and presents as a five storey height on this elevation. c. The KPSO requires the uppermost level to be of reduced scale relative to the floors below (Clause 25l(7)). DCP 55 Part 4.3 Control C-9 has the same requirement, and states its objective is `top floor design that minimises visual bulk, promotes articulation, and prevents any increased overshadowing'. Although the proposal complies numerically with this requirement, the beneficial effects of reduced scale are negated on the Buckingham Road side, because the uppermost (fifth floor) level continues in the same vertical plane (or inset by only a nominal dimension) compared to the fourth floor level on this side. The effect is that, rather than having a four storey appearance, with a fifth level set in and of reduced impact, a full five storeys are apparent facing Buckingham Road. This is then further exacerbated by the fact the side is located on the `high' side of the street and to the adjacent heritage item at No. 11 Buckingham Road. Combined with the excessive length of this facade (see items 3(a) and (b) above), these circumstances will result in an unduly dominant, monolithic and unsympathetic presentation to Buckingham Road. d. The design treatment of the elevation, in terms of articulation, fenestration patterns and materials, emphasises a monolithic/institutional presentation to the building and exacerbates the impacts of its visual bulk and inconsistency with the Residential 2(d3) zone objectives and the design principles of SEPP 65 and the Residential Flat Design Code. e. The relationship with the adjoining heritage item at No 11 Buckingham Road is unsympathetic due to: (i) excessive bulk and scale along the Buckingham Road frontage; and (ii) The failure of the design to incorporate measures to ensure a sympathetic relationship with the heritage item on its low side, for example by stepping down in height towards that building. f. The proposal is inconsistent with Principles 1, 2, 3, 6 and 10 SEPP 65, Parts 1, 2 and 3 of the Residential Flat Design Code, Parts 3.2, 3.5, 4.4 of DCP 55 and the objectives for residential development in clause 25C(2)(c), (e) of the KPSO. 4. The proposed landscape treatment is inappropriate Particulars a. The landscape plan is unsatisfactory as it utilises low water use plant species in locations that are ineffectual and would not achieve the intention of the BASIX commitments. The areas of low water use species are placed intermittently over the site, located immediately adjoining high water use plants and are not contiguous. b. The proposed basement area will have an adverse impact upon the stand of mature Eucalyptus saligna (Sydney Blue Gum), identified in the Arborist report as Tree Nos. 41 to 43 and located adjacent to the northern boundary with No 576 Pacific Highway. The trees will be negatively impacted upon by deep excavation for the basement garage within the root zones of these trees. 5. Residential Amenity The proposed development application has failed to provide for adequate visual privacy to the adjoining development to the west. This property (No. 11 Buckingham Road) is a heritage item, zoned 2(b) Residential under the KPSO, accordingly there is a high degree of likelihood that its relationship with the development on the subject site will persist in the long term. The proposed development also presents an unsatisfactory visual bulk when viewed from No. 11 Buckingham Road. Particulars a. As a result of the fall of land away from the Pacific Highway, and the failure to incorporate specific design or landscape measures to protect the amenity of No. 11 Buckingham Road, the upper floor living areas and balconies will result in unreasonable and unacceptable privacy impacts. b. The proposed development fails to incorporate measures to mitigate the impacts of bulk on No. 11, for example by stepping down in height towards the boundary, to provide a more sympathetic transition of scale. 6. Building sustainability The proposed amendments to the basement level have resulted in the removal of the internal garbage room and collection point. The resulting development would have insufficient space to provide for the needs of residents. Particulars a. Residential flat developments are required include a common rubbish collection/separation area of sufficient in size to store all garbage bins and recycling bins for the propose number of units in the development. The area indicated on the revised drawing falls well short of the required space for the 36 units proposed. b. A waste collection, recycling and bin storage area should be provided which caters for the following: i. 1 x 240 litre waste container for every 2 units ii. 1 x 240 litre paper recycling for every 4 units iii. 1 x 240 litre mixed recycling for every 4 units. Sufficient space must be afforded within the bin storage and recycling room to permit adequate access and circulation for residents and waste collection. 7. Development application is inadequate for assessment purposes The following are not matters for refusal, but matters which should be addressed by the applicant prior to the hearing: a. Section lines not shown on drawings; b. Setbacks shown inconsistently (eg, 13.8 metres to eave on DA12, 14.7 metres on A-08, 15.00 on A21); c . The application contains inadequate and insufficient information as set out in Section 3 of this Statement. The Evidence 22 The respondent's evidence came from: o Ms D Laidlaw, consultant town planner o Mr R Olsson, consultant urban designer o Mr S Fenn, landscape officer of council o Ms S Hughes, resident/objector 8A Buckingham St o Mr I Whitla, resident/objector #2/576 Pacific Highway and Member of Strata Plan 5121, the northern neighbour of the proposal. o Ms M McCormick, resident/objector 17 Buckingham St, who also had authority to speak for Messrs S & G Bannan of 11 Buckingham St (neighbours on the west who are overseas) and to admit us to No.11. Bannan's objection is in Exhibit 1 folio 391. No.11 is a heritage item. 23 The applicant's evidence came from: o Mr J Lovell, consultant town planner o Mr G Revay, representative the applicant o Ms N Sonter, consultant landscape designer o Ms C McKenzie, consultant horticulturalist o Mr T Liu, consultant engineer 24 The parties agreed one of the major issues is that there is 38.9% deep soil landscaping (DSL) on the site when 50% is required. Cl 25I of the KPSO is mandatory and soil above basement slabs or less than 2m wide is not DSL. 25 The respondent said this could be overcome by stopping the basement projection out from the dwelling levels, and building a 2-level carpark instead of a single level. The applicant said that to do so would cost another $400,000 and make a more complicated carpark, and add about 400 extra truck trips to cart the excavated material away. The latter would be an impact on the residential streets because the applicant believed the trucks would have to route through residential streets in one direction at least due to the centre median on the highway preventing right turn. 26 Another major issue is the 5-storey west end of the building. The respondent's evidence is that in order: o to relate to the lower scale Residential 2(b) zone of No.11, and o to relate to the heritage item of No.11, and o to take account of the slope of the land down to No.11 that makes the 5-storeys look much taller, and o to achieve acceptable streetscape. 27 The building should step at its west end. Mr Olsson favoured the lower two storeys stepping closer to the west boundary the 3rd and 4th floors to remain as is and the top floor being stepped further away. 28 The applicant said this is unnecessary because: o the setback to the west boundary is much greater than the minimum required by council's controls, so in effect, the whole building is setback. o the existing and proposed density of vegetation would make it difficult to see the proposal from No.11, and o the northern boundary setback means that the proposed building is about on the same east-west axis as the house on No.11, so there would be little visual impact as seen from No.11's back yard, and none from inside the house, and o the streetscape has to be perceived as partly a result of the change of zoning, there will be a change of building scale from the 2(b) zone to the 2(d3) zone. 29 The other major issue is the streetscape. Another 5-storey block of flats had been approved opposite the proposal on the other corner of Buckingham and Pacific Highway at Nos. 2-8 Buckingham. The applicant said it is similar to the proposal. 30 The respondent said the land at Nos 2-8 falls away on the south side of the street so that 5-storey building will look, as seen from the highway, 2-storeys with a 3rd set well back on a roof deck, and as seen from Buckingham 3-storeys with a 4th setback on the roof deck. The proposal by comparison is on high ground about 1-storey above Buckingham, so it is dominant, and will look 6- storeys as seen from Buckingham at the west end in particular. The intention under cl 25I(7) is that it took 4 storeys with a 5th set in from the facades and having an area 60% of the 4th floor. 31 Part of this visual impact the respondent's evidence says, is due to the top floor not being set well back on the roof deck as required by DCP55. This occurs on both the west end and the south side, the latter being the street façade. The DCP55 provisions are specifically to reduce visual scale of 5-storey buildings and this is particularly important on transitional sites between the high and the low density zones, and where topography accentuates bulk and height. 32 The applicant said the reduced setbacks of the top floor are partly due to good design amenity for outdoor spaces of the top floor units. It is better to give them wider terraces on the northern sunny side, rather than give them equal setbacks north and south just to comply with the DCP. In any case the applicant said the Buckingham street façade articulation it has introduced in the amended plans breaks up the scale of the building to an acceptable extent. The floor space of the 5th floor is 60% of the 4th floor. 33 This raises perhaps the final major concern of the council that the articulation is not sufficient. The respondent said the building should either be in 2 separated blocks, with the same site coverage as the current design; or, have an indented bay on the Buckingham façade at least 9m wide and 5m deep, with the roof form reflecting the break. 34 The proposal has a vertical step of 1.2 m between the roofs of the west and the east halves, and a horizontal step of only 0.5m at the break between the roofs. The respondent says this is not enough articulation in an overall southern façade length of about 60m. The various indentations along the 60m of between 0.5m and 2.0m and several places where the facade goes up the full 5 storeys in one plane, are not enough to disguise the monolithic bulk of the 5-storey building according to the respondent's evidence, and will not achieve the objectives of the KPSO or the DCP. 35 A matter that compounds the streetscape impacts in regard to the south façade, is the landscape treatment that the respondent says is not sufficient to soften the bulk of the building to an acceptable level, and this is partly related to the projection of the basement forward of the building line, underneath finished ground level, thus deleting DSL area where it is most needed for large trees. 36 The respondent notes that on the landscape plans the trees of the proposal have canopy diameters much smaller than those of existing BGHF trees shown on the same plan, and this exemplifies the need for DSL. It will provide a better chance for the proposed trees to reach their full size and maintain/enhance the leafy character of Ku-ring-gai and soften the architectural form of a 5-storey block of flats. 37 Another matter of interest is the respondent's review of Ms Mckenzie's volumetric calculation of soil volume needed for large trees. She said the ratio needed is 0.6 cu.m DSL for each sq. m of canopy area projected onto the ground plane. Annexure 2 of her report bases her conclusion that there is ample DSL on an 8m diameter canopy covering 7.5sq.m; a 12m canopy covering 33.30 sq m and a 16m canopy covering 120sq m. The plan she used assumes circular canopies, so using the accepted maths formula, the area covered in each case must be much greater, and therefore the volume required is much greater than she calculated for each tree. The applicant protested that Ms Mckenzie was not tested on that, and the respondent retorted that the plan came in late, and the respondent could not get a landscape sustainability expert in time for the hearing. As a result of this exchange I cannot automatically assume there is not enough DSL. 38 Another aspect of the DSL provision is the cross-section of the basement wall provided by Mr Revay in Exhibit J. It shows a single 200mm thickness concrete block retaining wall that in places would be 4.5m high. Structurally, it is very doubtful that such a wall would be sound. In fact the applicant's geotechnical report required contiguous piling to the basement which would be much greater in dimension and further reduce the DSL, as the piles would need to be outside the basement to keep the car spaces large enough to comply with the applicable standard AS2890. 39 Mr Liu gave evidence that indeed at high wall sections and where reduced over-excavation (the extra space needed for construction) is required, at the very least 600mm diameter soldier piers at 2.4m centres with spraycrete concrete panels between, are needed. They would require bracing either with rock anchors drilled out past the basement into the DSL area, or a capping beam within the ground floor slab. Where the piers are not needed he said the construction would be by over-excavation to create batters at 1:1 slope starting at the basement floor level. To prevent erosion during construction the batters have to be stabilised with spraycrete or some other material until the basement walls are built and then it is back-filled up to finished ground level. 40 It was not lost on the respondent that these works are out in supposed DSL, and where the basement wall is only 4m from the boundary the excavated batter would be out to the boundary. Also existing trees occurred within the setback and close to the boundary within neighbours land, the tree roots must come within the excavation. 41 Mr Liu had not considered trees. Ms McKenzie did not appear to have considered large over-excavation of this scale although she had done root mapping of some existing trees relative to the basement wall location. On cross-examination Mr Liu said he would take the batter to the edge of wherever the tree protection areas exist and then shore up vertically from there. The type and method of shoring was not described. Also there would have to be drainage of the retaining walls as part of the construction, usually they are outside the walls. Mr Liu thought it could be done by allowing seepage through the basement walls and catching it in open channels just inside the wall and drain to pump-out pits. 42 Also the erosion-proof material on the excavation batters is usually left in place when backfilling is done. The usual materials would be root-proof too. Mr Liu said it could be taken up if required as backfilling progressed. Conclusions. 43 It is apparent that the extent of disturbance to the 38.9% of DSL proposed by the applicant will be considerable during construction. The impact on existing trees would be difficult to control, and the actual extent of DSL after construction could well be less than 38.9% of the site area. It is a large non-compliance in numeric terms. 44 Given the statutory nature of the 50% requirement for DSL, it is a central plank in the objective of maintaining/enhancing the leafy character of Ku-ring-gai, and propagating the Blue Gum High Forest ecological community within urban development. An essential component of this objective is to have enough space and deep soil between buildings to allow the very large trees that are part of BGHF, to grow to maturity and spread their canopies. 45 I note both Ms Mckenzie and Ms Sonter prefer not to have large trees spreading their branches above private courtyards for quite proper reasons of enabling sunlight into the courtyards and avoiding potential danger from branch-drop. Large trees drop large branches without warning at times, as well as during storms. 46 I note also the statute requires building site coverage to be 35% maximum so there is 15% site area allowed for other external facilities in order to keep the 50% site area of DSL to be as the definition requires……….i.e. with no structures beneath or on top. 47 The large trees that are part of BGHF are needed more on high density zones with large buildings than they are where only houses are permitted. Their ability to soften and enhance the appearance of large buildings is obvious. This will be a vacant site once a development is approved, so it is reasonable to expect any proposal to be able to comply with the statute. 48 The argument of the applicant that it can achieve the visual objectives of the DSL is doubtful in this case, and whether it would be consistent with the broader objective of BGHF propagation is questionable. There may be some "balance" in the submission by the applicant that having a single level basement reduces CO2 emissions, and reduces excavation and traffic generation (and cost to the applicant), but that is a separate purpose to DSL, and not spelt out so clearly in the applicable statutes. 49 I cannot accept the SEPP No. 1 objection to cl 25I(2) of the KPSO is well founded. 50 The applicant asked if my decision was against the SEPP No.1 that it be given the opportunity to amend the plans to provide two basement levels and comply with the DSL of 50%. Before considering that I must determine the other issues in dispute. 51 The Olsson/Laidlaw in oral evidence on the relationship between the proposal and the heritage item at No.11 is that the lower 2 storeys of the proposal should go west to the 9m minimum side setback line and leave levels 3 and 4 where they are and possibly level 5 too on the west façade only, but still stepping in on the south facade. 52 My understanding of the objectors on this aspect, corroborated by the applicant, is that they thought the upper floors would step back also to give the whole west end a stepped appearance that would give a visual transition down to the residential scale. 53 The applicant says that the west end has 15m setback so the whole building is away from the houses, and the trees to be planted in the setback will create a buffer. 54 From inside No.11's back yard, I saw that the proposal would hardly be seen given even the existing vegetation, and shadows would only affect the roof of the house. 55 The distance of separation is greater than usually required for privacy in the high density zones. But one should take account of zone interface site where a higher level of amenity and privacy is expected in the 2(b) zone of No. 11. From the backyard of No. 11 at its swimming pool only the upper units of the North west corner would be able to see into the pool area. The respondent sought privacy screens to overcome that, but the applicant complained they would block views from those units to the Blue Mountains. It occurs to me stepping the west façade may take the upper units further away and prevent view lines to No 11's pool area. 56 The only aspect to be given further consideration in my opinion is the streetscape impact. 57 Until the Olsson/Laidlaw opinion was clarified, I also thought as the objectors. To me the transition at the zone interface is warranted due to the slope of the land and road that would make the west elevation appear as high as a 6-storey building, or more. A stepped form at the west end would be a better transition in streetscape terms. I acknowledge the zone interface must create an obvious change-point in the streetscape density, it is a matter of designing it well. 58 But the major issue in the streetscape is the building bulk and lack of articulation. I agree that the façade will appear a full 5-storeys high, and being on the high side of the road this becomes part of the site constraints. It makes the provisions of the KPSO and DCP55 more important, not less. 59 The provision of larger roof terraces on the north side for the penthouse units is good design, but it is not a 'trade-off" against the streetscape requirements. This is a prominent site, and requires sensitive treatment. The respondents' experts points are correct about the minimal articulation between the two component wings of the proposal, it will read as a single large bulk. 60 The articulation proposed would create some features to relieve the 60m long by 15m (+) high bulk of the street elevation, but not to achieve the objective of breaking up the actual bulk of these new large buildings into components 36m long and 4-storey with a stepped back 5th sought by the statute and controls. The provisions are another means of achieving transition in scale at a zone interface site, and achieving an acceptable relationship with single dwellings next door, and achieving the KPSO visual amenity of buildings in landscape settings such that the vegetation dominates. 61 One can see in the older development at Nos. 576 Pacific Highway next door, the acceptable relationship with adjoining houses and streetscape was achieved by having extensive landscaped grounds with much larger boundary setbacks than DCP55. Allowing higher density on smaller sites as in the Residential 2(d3) zone requires more sensitive design than seen in this proposal. 62 I find Contentions 1, 2 and 3 determinative and the proposal should be refused. 63 Therefore the orders of the Court are: 1. The appeal is dismissed. 2. The exhibits are returned to the parties except exhibits 3, 12, B, G, J and M. ________________________ K G Hoffman 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.