Land and Environment Court of New South Wales CITATION : Broockmann v Ku-ring-gai Council [2008] NSWLEC 1236 Applicant: William and Christine Broockmann PARTIES : Respondent: Ku-ring-gai Council FILE NUMBER(S) : 10104 of 2008 CORAM: Roseth SC KEY ISSUES: Development Application - Dual Occupancy :- LEGISLATION CITED: State Environmental Planning Policy 53 DATES OF HEARING: 13 June 2008 and 16 June 2008 DATE OF JUDGMENT: 20 June 2008 Applicant: LEGAL REPRESENTATIVES: Mr S Kondilios, solicitor of Maddocks Lawyers Respondent: Mrs L Finn, solicitor of HWL Lawyers JUDGMENT: - 8 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Roseth SC 20 June 2008 10104 of 2008 William & Christine Broockmann v Ku-ring-gai Council JUDGMENT 1 Senior Commissioner: This is an appeal against the refusal by Ku-ring-gai Council of a development application to demolish the swimming pool and garage and construct a detached two-storey dual occupancy dwelling on lot 9, section C, DP7928, known as 18 Bromborough Road, Roseville. The site 2 The site is on the southwest corner of the intersection of Bromborough Road and Alston Way. Its area is 929m2. A two-storey house, garage and swimming pool now occupy it. The house is set back 18m from Bromborough Road, which is the reason for the council's opinion that dual occupancy on this site is appropriate only if the existing house is demolished and replaced with one closer to the street (and therefore further from the rear boundary). A tall Himalayan Cedar occupies much of the front yard. `At the rear of the site is a single-storey structure that appears like a three car garage, though it has space for only one car. 3 The allotments in the locality are similar in size and character to the subject site, as are the houses on them. To the west the houses have similar large setbacks. To the east of Alston Way the setbacks appear somewhat smaller. Immediately to the west is 20 Bromborough Road, while to the east, on the opposite corner of Alston Way, is No 16. The neighbour to the south is 35 Shirley Road. The proposal and its history 4 The applicant proposes to demolish the existing building and swimming pool at the rear of the site and to construct a two-storey detached dwelling in their location, with a double garage accessible from Alston Way. It proposes to add a double garage to the existing building, also accessible from Alston Way. The division between the portions of the site available for the existing and the proposed second dwelling is in the proportion of two-thirds to one-third. 5 The applicant lodged the development application in March 2007. Following notification, the council received seven objections and a petition. The council refused the application in August 2007. In November 2007 the applicant requested a review under s82A of the Environmental Planning and Assessment Act 1979. The council re-notified the application and received ten letters of objection. The council refused the reviewed application in February 2008. Relevant planning controls and policies 6 The Ku-ring-gai Planning Scheme Ordinance zones the site 2(b), a zone in which dual occupancy is permissible. State Environmental Planning Policy 53 (SEPP 53) permits detached dual occupancy on sites of 600m2 or more. The council has a Dual Occupancy Code that specifies controls, which are missing in SEPP 53, for example setback distances. Matters in contention 7 The council submitted its Statement of Contentions listing four matters, which may be paraphrased as follows: · Out of character with residential development in the vicinity; · Privacy impact on 18 and 20 Bromborough Road; · Two-storey building with inadequate setback and screening; · The available rear yard is too small for the proposed dwelling. The objectors' concerns 8 The Court heard the evidence of five objectors during a visit to the site. Dr Richard Powell, who lives at 20 Bromborough Road adjoining the subject site to the west, said that his concerns were incongruity with the neighbourhood character, adverse visual impact on his property, noise and overshadowing. He considered the proposed building too large so that he will be unable to screen it. The main problem was the proximity to his side boundary. He noted that the proposed building was closer to the boundary than required by the Dual Occupancy Code. 9 Mr Robert Gordon, who lives at 35 Shirley Road adjoining the subject site to the south, said that he was concerned about the destruction of neighbourhood character and visual impact on his property. He perceived that the proposed building will dominate his rear yard and will be visible from all points. 10 Mr Sean O'Brien, who lives at 16 Bromborough Road and looks at the site across Alston Way, was concerned about impact on neighbourhood character and visual impact on his property. Mr Ross Dale, who lives at 37 Shirley Road, and Mr Barry Farr, who lives at 33 Shirley Road, had similar concerns. 11 All the objectors said that they were concerned about the impact on the area's character. This more general concern is also shared by the council and its planning expert, Mr George Youhanna, and is discussed below. As regards particular impacts on the objectors' properties, Mr Youhanna thought that the worst impact was to the west and north, that is, to No 20 and the existing house on the site. I agree with his assessment; however, I give reduced weight to the impact on the existing house because the applicant owns it and is presumably willing to accept the impact. Any subsequent owner or tenant will know about the impact before buying or renting. From the neighbouring properties the greatest impact is on No 20. 12 Dr Powell said that he was concerned about four types of impact: visual, noise, overlooking and overshadowing. I agree with him that he will see the proposed building and would not be able to screen it out of visibility. I do not think that the noise impact could reasonably be considered as unacceptable, unless the proposed building has unusually noisy occupants, and I have no reason to assume that this would be the case. It is true that No 20 would be subject to more noise because there will be a house adjoining the rear yard where there was none before; however, this would be the result of any development under SEPP 53. To avoid overlooking its neighbours, the applicant accepted conditions that require either highlights or opaque glass in all upstairs windows. With these changes I am satisfied that there will be no overlooking of No 20, or any other neighbours. As concerns overshadowing, at mid-winter there will be shadow in the southeast corner of the rear yard at 9am. By about 10am most of it will disappear. 13 To sum up, the main impact on No 20 will be the ability to see the upper storey of the proposed building from most parts of the rear yard. The proposed hedge will provide some screening, though it will not be complete. I do not think that this impact is sufficiently significant to justify refusal. Dr Powell said that he considered that the council (and presumably the Court) should preserve his amenity as it now is. I do not think that this is possible while applying a planning instrument such as SEPP 53, which promotes change by allowing two houses where previously there was only one. The question for the Court is not whether Dr Powell's amenity will remain unchanged, but whether the change is acceptable. 14 Because Dr Powell objected to what he perceived as inadequate setback, I turn to the proposed building's setback from the common boundary. For the ground floor the minimum setback is 2.6m, while the average setback is 2.8m. For the first floor the average setback is 5.8m. SEPP 53 does not contain controls for setbacks. The Dual Occupancy Code requires a minimum of 3m for both single and two-storey buildings. While the proposal does not fully comply with the Code at the ground floor, it almost doubles the required setback at the upper level, where the impact is much more noticeable. It seems to me that the proposal's impact on No 20 is much less than if the building complied with the Code and the setback were 3m for both floors. 15 I turn to the impact on 35 Shirley Road. The setback to the common boundary is 1.2m at the ground floor and 2.6m at the upper floor, though these distances are at building corners only and the length of the closest part of the upper floor is about 3.5m along the 16m wide rear boundary. The etched glazing to the windows would prevent any overlooking. The overshadowing affects a small portion of the garden including a small portion of the swimming pool. In addition there will be visual impact because the proposed building will be visible. 16 I turn to the question of screening the proposal towards the south. The experts agreed that continuous screening in the 1.2m setback would be difficult. I note that the landscape drawings show a 3m high screen of Blueberry Ash. Given that the eaves of the upper level of the proposed building are 5-6m above ground, the lower part of the building will be screened from 35 Shirley Road, while the upper part and the roof wlll remain visible. The result would be partial screening that would reduce the visual impact towards the south but not eliminate it. The overall impact is acceptable. 17 The other three properties, 16 Bromborough Road, and 33 and 37 Shirley Road, are too far away to be significantly affected by the proposal. This is not to say that there will be no impact, only that it will not be major. Character 18 Clause 32(a)(i) of SEPP 53 states that the proposed development should Contribute to an attractive residential environment with clear character and identity. 19 Mr Youhanna and the applicant's planning expert, Mr Ian Glendinning, interpret this close differently. Mr Youhanna thinks that the clause requires the proposed building itself to have clear identity and character and to be attractive. Mr Glendinning considers that the statement means that the proposed development should contribute positively to an existing residential environment that has clear character and identity. 20 I do not think that there is a real difference between these two views. If there is, the above explanation (taken from the experts joint report) does not explain it. From the whole of the evidence given by the experts, it appears that the real difference between them is that Mr Youhanna thinks that contributing to an attractive residential environment means that the existing character must remain unchanged, while in Mr Glendinning's view the character may be changed as long as it remains attractive. 21 A complete reading of SEPP 53 makes it clear that, if the Policy required the continuation of the existing character, no dual occupancy development could be approved under it. The basic concept of dual occupancy is that there will be two houses on allotments on which there is now only one. Floor space ratios of 0.5:1 are allowed. While there was no evidence of the existing floor space ratio in this locality of Roseville, my estimate is that it is around 0.25:1, in other words, half of what SEPP 53 permits. An area with two houses on an allotment has a different character to an area with only one house. When read in the context of the whole Policy, cl 32(a(i) should be understood to say that the attractive elements in an area's character should not be destroyed, not that the character must remain frozen in time. Change is an inevitable consequence of applying the Policy. 22 In my opinion, the proposal complies with cl 32(a)(i) of SEPP 53. Privacy impact 23 My understanding is that, following amendments to the proposal, Mr Youhanna agrees that there will be no impact on the privacy of properties to the south and west. I have already stated why impact on the existing house is to be given lesser weight. Bulk in relation to site, setback and screening 24 This issue is related to that of character. In Mr Youhanna's view, the rear part of the site available for the proposed building, being about 3002, is too small for it. I note that SEPP 53 allows detached dual occupancies on 600m2 allotments. If a 600m2 allotment is divided equally for each dwelling, the resulting density will be one dwelling per 3002. Moreover, while the FSR of the overall development is 0.39:1, the perceived FSR (ie the floor space of the new dwelling over the rear portion of the site available for it) is in the order of 0.5:1. Therefore, if one accepts the development standards of SEPP 53 as appropriate, the indices of this proposal are also appropriate. 25 Mr Youhanna says that it would be better to demolish the existing house on the site and rebuild it closer to the street as this would provide more space for the second dwelling in the rear. While this is undoubtedly so, I am surprised that he did not give at least some credit to the applicant for preserving the Bromborough Road streetscape intact. The change in streetscape will occur in Alston Way, which is of secondary importance. The preservation of the main streetscape is a major factor in favour of the proposal. 26 For the above reasons the appeal is upheld. Orders 1. The appeal is upheld. 2. Development application to demolish the swimming pool and garage and construct a detached two-storey dual occupancy dwelling on lot 9, section C, DP7928, known as 18 Bromborough Road, Roseville is determined by the grant of consent subject to the conditions in Annexure A. 3. The exhibits are returned except Exhibits 7, A and B. ___________________ Dr John Roseth Senior Commissioner 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.