Land and Environment Court of New South Wales CITATION : Charalambous v Ku-ring-gai Council [2007] NSWLEC 427 APPLICANT Harry Charalambous PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 10122 of 2007 CORAM: Murrell C KEY ISSUES: Development Application :- Consent Orders, bulk, streetscape, traffic, setbacks, overshadowing and landscape Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planning Policy No 53 Ku-ring-gai Planning Scheme Ordinance Ku-ring-gai Dual Occupancy Development DATES OF HEARING: 29/5/2007 EX TEMPORE JUDGMENT DATE : 29 May 2007 APPLICANT Mr J. Hones, solicitor of Hones Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr P. Marincowitz, solicitor of DLA Phillips Fox JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 29 May 2007 10122 of 2007 Harry Charalambous v Ku-ring-gai Council This determination was given extemporaneously and it has been edited prior to publication JUDGMENT 1 This is an ex tempore judgment for an appeal under s 97 of the Environmental Planning and Assessment Act. The parties have now agreed to enter into consent orders. 2 The Court met on site this morning to hear from resident objectors and to carry out a site inspection and understand the character of the area. The subject site is known as No. 5 Shelby Road, St Ives Chase, on the corner of Collins Road. 3 The Court heard from Mr Eyre who resides at 128 Collins Road. He is concerned about the visual bulk in the streetscape of the fact that the proposed development is on his side boundary and as such he considers that the 12 to 15 metre setback of the existing dwellings within Collins Road should be retained. 4 Mr Binney of 122 Collins Road is concerned about the traffic, and stated that it is a dangerous street with a number of accidents that have occurred. He is also the concerned about the streetscape and property values. Mr Smith of 101 Collins Road is concerned about the reduced setback and that most of the dwellings observe 10 to 15 metres. He is also concerned about the overshadowing and visual aspects of the proposal. 5 Mr Solomon of No. 126 is concerned about the bulk of the building, that the trees block views of the street, which is very dangerous and the traffic from the proposal would create a safety hazard. 6 Councillor Tony Hall of 60 Woodbury Road is concerned the proposal is not consistent with the subdivision pattern in the area and its bulk and streetscape presentation. He supported the other residents in their comments and also spoke of ameliorative impacts on adjoining properties. There was also discussion about the council's code and SEPP 53 – dual occupancy. 7 Mr Dimos of 5 Shelby Road, resides in the house adjoining in Shelby. He is concerned about maintaining 12 metre setbacks to the street and two big houses on a single block of land in his opinion is out of character with the area. 8 Mrs Pip Mills of 99 Collins Road also advised the Court about the dangers of the street and the number of accidents. 9 By way of summary, the resident objectors are concerned about the bulk and scale of the proposed dual occupancy development and they are concerned also about the traffic in Collins Road and the dangerous driving of people such that it has resulted in accidents in the area. 10 The residents are concerned about the setback of the proposed development not being in character with the street. In the context of the setbacks of many of the dwellings was observed, and while No. 128 Collins Road is set back considerably this is further than many of the dwellings along Collins Road. 11 The Court took the opportunity of a walk of the area to understand the juxtaposition of dwelling houses, in particular those on corner allotments, and it is noted when we came back to Court that the setbacks for certain properties were advised in terms of the measurements made on site. No. 119 Warrimoo Road is 4.2 metres, and 117 Warrimoo Road, 9 metres to Shelby and to Warrimoo itself 2.3 metres. At No. 9 Shelby this is 9 metres and to Collins, 3.5 metres; No. 128 Warrimoo is 9 metres to Warrimoo and 3 metres to the side street. 12 The proposed development is set back between 6.4 and 7.8 metres to Collins Road and to Shelby Road the minimum setback is some 9 metres for dwelling 2, increasing to 10 metres in places. House 'B' to Collins Road is 3.85 metres. The properties in the vicinity, as I noted, 128 Collins Road is set back considerably from the street. The property adjoining in Shelby, that is No. 5, is set back approximately 12 metres. The Court when it met on site also heard from Councillor Hall, and he considered that there should be a further setback from No. 128 such that that would then move the dwelling to Shelby Road by either a half to one metre. 13 In view of what I have just identified in terms of setbacks to corner allotments clearly there is a variety of setbacks within the area. The Court has also had the benefit of hearing from council's assessment officer, Ms Pendlebury and in her opinion the setback to Shelby should not be reduced because of the relationship with No. 5 and also having regard to the corner site and the bulk of the building to the corner. I agree with her assessment and I do not consider that a reduced setback to Shelby should be provided to increase the setback to No. 128 Collins Road. 14 The setback is a minimum of 2 metres where the dwelling is single-storey and at the two-storey element it is 3 metres from the boundary. While it is considerably forward of No. 128 the setback is not unreasonable and it will not adversely impact on the streetscape. The setback of the frontage and the setback to the side boundary with No. 128 will provide for appropriate landscaping to soften the impact of the dwelling house such that it will sit comfortably within the streetscape of this leafy garden suburb. 15 The Court also has the benefit of exhibit 6, which is an assessment by council's officer of the amended plans that are the subject of these proceedings. The amended plans have been modified such that council's officer is now satisfied that the aims and objectives of council's dual occupancy code are met and that the amended plans respond to the issues that had been raised by the council in its assessment. 16 The plans provide for increased setbacks in certain areas and articulation of the dwelling to ensure that it does not present as a bulky element in the streetscape. The council's assessment is also that the building heights, the floor space ratios are appropriate in the context of the area and the proposed dwellings are satisfactory in terms of their relationship for visual and aural privacy. It is also noted that council's engineering section does not raise concerns with the location of the driveway for dwelling 'B', which is the existing driveway on Shelby Road, and the council's engineers also do not concern with respect to the proposed development in terms of the capacity, or the environmental capacity, of the street to accommodate the development. 17 It is noted that many of the residents expressed concern about the traffic. I accept council's engineer's assessment that the proposal would not impact in terms of traffic generation or in terms of creating a safety concern by a reduced setback to Collins Road. By way of comment if the traffic is of concern the council may wish to investigate local traffic management measures. 18 I am satisfied the proposed development will not create an unsafe situation in terms of vehicle entries and exits to the road. Clearly people in backing from their driveways must always be conscious of cars traversing where there is undulating topography and relatively straight long streets with the other people speeding. 19 The Court also had the opportunity of going into the premises of No. 5, as it did at No. 128. In terms of No. 5 the Court is also satisfied that the amenity of that dwelling will not be unreasonably impacted by the development of the proposed dual occupancy development. The relationship of windows, the relative levels of the ridge heights, the relationship of the lower RL for the ground at the rear of the dwellings in relationship to No. 5 has been considered. Landscaping is also proposed to be fine tuned to ensure that there is no impact on No. 5 in terms of sun to that property. It is also noted that the applicant has agreed to ensure that the plantings are such that they will not interfere with adjoining properties. Larger setbacks from the common boundaries are required for the planting of, in particular canopy, trees in the development. 20 The Court also has the benefit of council's assessment of the compliance of the development with State Environmental Planning Policy No 53 for dual occupancy development. I am satisfied that in terms of the character and in terms of the provisions of SEPP 53, that is the streetscape and visual bulk, the proposed development is satisfactory. 21 I am also satisfied in terms of an assessment under council's planning regime that the proposed development satisfies the requirements of an 8 metre building height, the proposed maximum height of the dwellings is 7.7 metres, and the built-upon area is clearly considerably less than the 60 per cent allowed within the KPSO, the subject development being some 41 per cent on average. 22 In terms of an assessment under council's Dual Occupancy Development Control Code the original non-compliances are partially satisfied by the amended plans. Generally the proposed development as amended complies with council's dual occupancy code, and the minor differences that on a merit assessment of the proposed development is satisfactory. It is noted that that requirements for soft landscaping and the requirements for setbacks are generally complied with in terms of the council's dual occupancy code and I agree with the council's officers assessment. 23 In my assessment of the visual privacy and solar access I am also satisfied I note that whilst there was some overshadowing of No. 128 this does not in any way represent unreasonable overshadowing and this would not unreasonably impact on the amenity of No. 128. I also note that in terms of the solar access for the development itself, that is the two dwellings proposed on the site, that solar access is satisfactory. 24 The building setbacks have been considered further in terms of the amended plans and the Court has regard to the special provisions within the council's code for setbacks on corner sites. I note that the frontage setback of the proposed development satisfies council's code in terms of an average setback. I also note that in terms of the side setback to No. 128 this is also complied with and the second storey is some 3 metres as opposed to 2.5 metres. 25 The floor space ratio of the proposed development is some 0.41:1 and the maximum FSR under SEPP 53 is 0.5:1. I am satisfied the proposed development will not be an overdevelopment of the site, and whilst two dwelling houses will be clearly read on this corner site it will not be of a scale or bulk that is unreasonable in the context of the area and in terms of, in particular, more recent development in the area. 26 Therefore, on the basis of my assessment, I see no reason as to why the Court should not agree to the issuing of the consent orders proposed by the parties and on the receipt of an amended landscape plan within seven days from today the formal orders of the Court will be issued. 27 Council's engineer is also to have regard to the sight lines in terms of visibility and it there is a potential traffic hazard of the existing camellia bushes. If there is no issue with respect to sight lines they should be retained in the overall landscape plan and on the street verge with the additional scribbly gums as proposed by the council. 28 Accordingly The formal orders of the Court on the receipt of the amended landscape plan will be by consent: 1. The appeal in respect of the property known as 7 Shelby Road, St Ives Chase is upheld. 2. The development application submitted to Ku-ring-gai Council and as amended, and shown in exhibit A, for the demolition of the existing dwelling house and the construction of a detached dual occupancy, is approved subject to the conditions contained in Annexure A. 3. The exhibits are returned with the exception of Exhibits A, 4, 5 and 6. It is noted that there is no order as to costs. ___________________ J S Murrell 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.