Land and Environment Court of New South Wales CITATION : Naylor v Ku-ring-gai Council & Anor [2008] NSWLEC 1380 APPLICANT David Naylor PARTIES : RESPONDENT Ku-ring-gai Council INTERVENOR Suzanne Smith FILE NUMBER(S) : 10391 of 2008 CORAM: Tuor C Development Application :- demolish an existing house and construct seven townhouses with basement parking. KEY ISSUES: Consent orders Visual bulk , privacy and overshadowing impacts Impact on significance of heritage items Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Land and Environment Court Act 1979 Ku-ring-gai Planning Scheme Ordinance Ku-ring-gai Multi-Unit Housing Development Control Plan 55 DATES OF HEARING: 02/09/2008 EX TEMPORE JUDGMENT DATE : 3 September 2008 APPLICANT Mr S. Griffiths, solicitor of Pikes Lawyers RESPONDENT LEGAL REPRESENTATIVES: Mr A. Hudson, solicitor of Wilshire Webb INTERVENOR Ms S. Smith JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 3 September 2008 10391 of 2008 David Naylor v Ku-ring-gai Council JUDGMENT 1 This is an appeal against the refusal by Ku-ring-gai Council (the council) of a development application (1342/2007) under the Environmental Planning and Assessment Act 1979 to demolish an existing house and construct seven townhouses with basement parking for 16 cars at 1 Warrangi Street, Turramurra (the site). 2 The issues between the council and the applicant have been resolved and they are seeking consent orders from the Court. Background 3 On 2 July 2008, Pain J rejected a Notice of Motion by Mrs Smith to be joined as a party, but granted leave under s 38(2) of the Land and Environment Court Act 1979 (the Court Act) for Mrs Smith of 1161 Pacific Highway, Pymble, to intervene in the proceedings to the extent that she can: (a) lead evidence from an expert town planner, (b) cross-examine witnesses and (c) make submissions, but only in relation to the overshadowing, privacy and visual bulk impacts on 1161 Pacific Highway, Pymble. 4 A conference under s34 of the Court Act was held on site on 2 July 2008. The conference was adjourned for the applicant to prepare amended plans. The conference was subsequently terminated and the appeal heard as consent orders on 2 September 2008. 5 Pain J heard a further Notice of Motion from Mrs Smith to be joined as a party on 2 September 2008. The Notice of Motion was resolved by the parties agreeing that the issues raised by Mrs Smith could be heard in the consent orders hearing. I granted leave for Mrs Smith, as intervenor, to be represented by Mr Ayling SC that was opposed by Mr Griffiths, for the applicant. 6 The parties agreed that the residents' evidence and my inspection of the site on 2 July 2008, as part of the s 34 conference, was admissible as evidence in the consent orders hearing. The site, its context and planning controls 7 The site, its context and the planning controls are described in the Statement of Facts and Contentions. 8 The site has an area of 1560 sqm with a frontage to Warrangi Street of 38.48 metres and a southern boundary of 45.98 metres. The site slopes towards Warrangi Street with an overall cross fall of about three metres. It is zoned 2(d3) under Ku-ring-gai Planning Scheme Ordinance (KPSO). The development is permissible with consent. 9 Adjoining the site to the south are two single storey "Spanish Mission" style houses (1161 and 1163 Pacific Highway). The houses are listed as heritage items and are zoned Residential 2(c) under KPSO. 10 Adjoining the site to the north is a single storey house (3 Warrangi Street) that has a substantial front setback. The house, and others to the north are zoned 2(c2). 11 Across Warrangi Street to the west and adjoining the site to the east along the Pacific Highway are residential flat buildings. These properties are zoned 2(d3) under KPSO. 12 Part 111A of KPSO and Ku-ring-gai Multi-Unit Housing Development Control Plan 55 (DCP 55) provide controls for the Rail/Pacific Highway Corridor, which includes the site. 13 The contentions initially raised a number of areas of non-compliance with the controls in KPSO and DCP 55. The amended plans have addressed these matters to the extent that council is now satisfied that the proposal complies with the relevant controls. 14 The key concerns raised by Mrs Smith relate to the visual bulk of the proposal and its impact on the heritage significance of her property as well as privacy and overshadowing impacts. Evidence 15 The Court heard expert planning evidence from Mr D Kettle, for the applicant, Ms R Pearson for the council and Mr N Juradowitch, for the intervenor. 16 Ms Pearson and Mr Kettle explained how the contentions raised by council had been addressed by the amended plans. Mr Juradowitch agreed that the amended plans had addressed a number of concerns, but maintained his opinion that the length and height of the building resulted in an unacceptable visual bulk, which adversely impacted on the heritage item. 17 Mr Juradowitch considered that the building should appear as two separate buildings, although, he had not considered the design changes that would be required to achieve this outcome. He stated that the centre of the building could be lowered or further set back which would improve solar access and privacy impacts to the adjoining property. It would also provide greater opportunity to plant canopy trees in the centre of the site rather than on the perimeter, as currently proposed, which impacted on the amenity of adjoining residences through overshadowing. Findings 18 I acknowledge Mrs Smith's concerns and recognise that the amenity that her property currently enjoys will be impacted upon by the proposal. However, this is not the test, rather, the question is whether the impacts are reasonable and consistent with what is anticipated by the planning controls. 19 The site is a transition zone, which needs to respond to the 2(c) zoning and heritage listing of 1161 and 1163 Pacific Highway and the 2(c2) zone along Warrangi Street. The site is zoned to permit townhouse development and residential flat buildings. The proposal complies with the relevant controls in KPSO and DCP 55. Notably, it is well below the maximum ceiling height of 7.2 metres. The proposed ceiling heights are between 5.6 to 5.8 metres. 20 Mr Ayling submits that the location of the site, within an urban conservation area and adjoining two heritage items, means that compliance with numerical controls is not sufficient to achieve an acceptable outcome and amenity for the adjoining property. In particular, Mr Ayling submits that the proposal will result in unacceptable overshadowing, privacy and visual bulk impacts on Mrs Smith's property. He submits that the consent orders should not be accepted and that further changes suggested by Mr Juradowitch should be required. In his submission, these changes were consistent with the requirements of s 3.4 of DCP 55, in particular: C-2 Buildings should be well designed to avoid long continuous facades facing the street frontages. Facades should preferably be broken into discrete pavilions or the opening in walls arranged so that their shape and size reflect the structure and openings of its neighbour. and C-3 Scale and massing of new buildings should be proportioned to respect and enhance the scale and character of adjacent or nearby development within the urban conservation area. Façade massing can be varied to break down the scale of new development adjoining new residential development. 21 I do not accept this submission. The proposal meets the numerical requirements of KPSO and DCP 55. These controls recognise the potential impacts on adjoining properties in different zones. In particular, cl 25L of KPSO deals with zone interface and provides: 1. The objective of this clause is to provide a transition in scale of buildings between certain zones. 2. The third and fourth storey of any building on land within zone 2(d3) must be set back at least 9 metres from any boundary of the site of the building and with land (other than a road) that is not within zone 2(d3). 3. Landscaping required to screen development from any adjoining property must be provided on the site and must not rely on landscaping on the adjoining property. 22 Section 3.5 of DCP 55 provides controls for development within the vicinity of a heritage item which include the requirements that: C-1 Medium density development adjacent to a heritage item shall: i. Setback the first and second storeys at least 10 metres from the adjacent heritage building. ii. Setback the third and fourth storeys at least 15 metres from the adjacent heritage building, and C-2 Screen planting on all boundaries with an item to achieve a height of at least 4 metres. 23 The proposal meets these controls and forms an appropriate transition between the zones. 24 I accept the evidence of Ms Pearson and Mr Kettle that the height of the proposal, its set back from the boundaries, the materials and landscaping, would result in a medium density development which has an acceptable visual bulk and impact on the heritage item and meets the requirements of KPSO and DCP 55. 25 While the length of the building along the southern boundary is about 46 metres, the building steps down with the slope of the land, which breaks up the roof form. The full length of the building will not be visible and the building will be softened by landscaping. I do not consider that a break in the centre of the building, either by greater setback or lowering the height of the building as suggested by Mr Juradowitch, is necessary to break up the bulk of the building or achieve an acceptable impact on the heritage item. 26 The section (SK27B) indicates that when viewed from Mrs Smith's property, due to the slope of the land the proposal will appear as a two storey building with eaves and ridge height similar to that at 1161 Pacific Highway. While the outlook from Mrs Smith's property is currently of trees, open space and sky, it is not reasonable to expect that this will be maintained given the zoning of the site. An outlook to a two storey building with a 25 degree pitched roof is not unreasonable. 27 In relation to privacy impacts, again bedroom windows will be located where there are currently none. However, the separation distance and the nature of the use of these rooms as bedrooms and studies does not result in unreasonable privacy impacts beyond those anticipated by the planning controls. 28 The Smiths currently enjoy uninterrupted solar access to their property. This will be affected until about 9.30am in mid-winter where most of the garden will be in shadow. By 10am the overshadowing of the proposal is generally within that resulting from the boundary fence. The proposal clearly complies with the requirements s 4.5 of DCP 55 for three hours of solar access in mid-winter. I acknowledge that there will be a reduction in solar access currently enjoyed by Mrs Smith and recognise that the rear garden is the area that is primarily used by her family due to the location of her house on the Pacific Highway, but I accept the evidence of Ms Pearson and Mr Kettle that the impacts on solar access are not unreasonable or beyond those anticipated by the planning controls. 29 I therefore accept the consent orders sought by the parties. Orders 30 The orders by consent are: 1. The appeal is upheld. 2. Development application No.1342/07 for the demolition of an existing dwelling and the construction of seven townhouses, basement parking and landscaping is approved subject to the conditions in Annexure 'A'. 3. The exhibits are returned to the parties except Exhibits A and 4. ___________________ Annelise Tuor 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.