Land and Environment Court New South Wales Medium Neutral Citation: To v Ku-ring-gai Municipal Council [2011] NSWLEC 1185 Hearing dates: 25 November 2010, 16 December 2010, 4 March 2011, 5 April 2011 Decision date: 05 April 2011 Jurisdiction: Class 1 Before: Murrell C Decision: (1)The appeal to modify the consent issued by the Council for 16 station Street Pymble, is upheld in part. (2)The s 96 modification application as amended is granted consent subject to the conditions in Annexure 'A'. (3)The appeal against the 121B order is upheld in part and the order is modified and is to be substituted with the order attached at Annexure 'B' that shows a schedule of works to be staged and to be completed within twelve months to Council's satisfaction. Catchwords: APPEALS: S 96 modification application and building certificates. Impact on adjoining properties; impact on heritage conservation area; impact on streetscape; adequacy of landscaped area; impact on trees; whether substantially the same development. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408 Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 Vasic v Penrith Council (1992 unreported - Stein J) Category: Principal judgment Parties: Mr Pui Wing To (Applicant) Ku-ring-gai Municipal Council (Respondent) Representation: Counsel Mr Gary Green (Applicant) Mrs L Finn (Respondent) Solicitors Pikes Lawyers (Applicant) HWL Ebsworth (Respondent) File Number(s): 10/10731 and 10/10732 Extempore Judgment 1COMMISSIONER: These findings are for two appeals: the first appeal is against a s 121B Order and the subsequent appeal against refusal of a s96 modification application. By way of background, proceedings commenced as a s 34 conciliation conference under the Land and Environment Court Act 1979, when the parties met on site and spent the majority of the day inspecting the works on the site that clearly did not comply with the approval granted by the Council in 2006. 2The subject site is No 16 Station Street, Pymble, and there are two matters before me. An appeal in respect of a s 121B order that was issued by the Council, and subsequently a s 96 modification application was submitted to the Council for approval of what were the unauthorised building works on the subject property. The two appeals have been together as clearly this is an efficient way to proceed. I preface my judgment and findings by saying that the parties have worked together on a number of issues in this matter in an attempt to resolve what is a most difficult situation. 3The Court was authorised by the parties under s 34(4) to determine the matter under that section as whilst there had been a number of changes to the plans, these did not satisfy the Council and agreement has not been reached. An amended statement of facts and contentions has been tendered, and this became exhibit 1 in the proceedings, and in the published version of this judgment I will incorporate many of the facts contained in the statement of facts and contentions. 4In summary, the contentions as are outlined by the respondent are: first, the proposal is not substantially the same development as required by s 96(2) of the Environmental Planning and Assessment Act 1979 with the inclusion of a second kitchen and an internal layout that resembles two dwellings rather than a single dwelling. The proposal is likely to have a detrimental impact upon the streetscape, the heritage item, at No 19 Alma Street at the rear of the subject property, and it is also opposite the heritage conservation area on the eastern side of Station Street. The Council provided detailed particulars in respect of this contention. Contention 2 was in fact the detrimental impact on the streetscape. 5Contention 3, the proposed modifications would have a detrimental impact upon residential amenity, in particular the bulk and scale of the masonry boundary fences, and the bin utility area at the south-eastern corner of the site, and (b) the viewing platform within the front setback reduces further opportunities for additional landscaping within the front setback. Four, adverse impacts on trees, and this is in respect of the viewing platform and the driveway, and further investigation of a camphor laurel tree on the adjoining heritage item. Five, insufficient information, that has been largely been overcome in terms of the additional detail that has been provided through the proceedings. 6When the Court met on site with the parties, it was evident that the development of the dwelling and the landscaping had not been constructed and carried out in accordance with the plans approved by the Council. For the dwelling house itself, I have closely examined the plans approved by the Council, and the plans that are the subject of the s 96 modification application in exhibit A. Constructed on site there is clearly a subfloor area or basement area, this is a non-habitable area without any windows. Clearly the size of the garage has also been increased from a two-car garage to a four-car garage. It was also evident that there had been extensive hard paving of driveway areas, steps, and pathways constructed around the dwelling house that were not part of the original application approved by the Council. 7The dwelling house itself, a comparison of the dwelling house sees that there is an alteration to the room configuration in places. The overall envelope is basically the same. There has been an additional kitchen area added to the dwelling and living areas as such. As I said, there is no significant increase in floor area, and it is more an internal reconfiguration of space. 8The Court had the benefit of expert evidence on behalf of the Council. Mrs Robyn Pearson, an executive planner for the Council, Mr Geoff Bird, landscape architect, and Mr Guy Paroissien, an arborist for the Council. The Court also heard on behalf of the applicant from: Mr Ross Fleming, a consultant town planner; Ms Narelle Sonter a consultant landscape designer; and Mr Peter Caster, arborist. The Court also heard from the heritage experts, Mr Robert Stass for the applicant, and Mr Dignam for the Council, heritage architects. 9The area can be generally described as containing large residential allotments, and the subject lot is a very wide residential allotment with a dwelling house placed towards the rear of the site, as it was the original house on the land prior to the erection of the new dwelling. The site is elevated significantly from the street, and there is also a vegetated verge to the north of the subject site. Prior to the re-development of this site, the verge, despite the rock face wall, was also reasonably well vegetated, however, this vegetation has since been removed. To the south of the subject site there is a two-storey dwelling house, also set within a landscaped setting with significant trees. To the south there is also some vegetation within the street verge. Opposite the subject site in the conservation area, on the corner there is a new large dwelling that has been erected with boundary fencing of a rendered construction. The area is of a leafy nature, and development within this area should complement and fit within the overall genre of the area. 10The Court in its assessment must have regard to the provisions of s 96, and this requires as a threshold question as to whether I consider the development is substantially the same development. This question has been considered by the Court on numerous occasions, and there is a great deal of case law that the parties also handed up including: Vasic v Penrith Council (1992 unreported - Stein J) and Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298. Other cases that were cited were those of Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408. The published version of the judgment will contain relevant quotes that I rely upon in assisting as authorities for determining substantially the same development. 11The Council is concerned that the proposal provides for two kitchens and two separate domiciles and in this regard it notes that a separate domicile "is capable of being used as a separate domicile". Therefore in council's opinion the subject application for modification contains an additional kitchen which Council says in essence significantly changes the development and also, the four car garage as opposed to a two car garage. 12The critical issue for the Council in saying that it is not substantially the same development is that the additional kitchen does not provide for a development that would be materially and of the same essence as that originally approved by the Council. The essentially or materially you are having the same essence is the authority and in Bignold's judgment of Moto the ultimate finding of fact is whether the modified development is substantially the same as originally approved. 13The Court in its assessment has had regard to the floor plan and while there is more than one entrance to the dwelling this is not unusual for large dwelling houses. The subject dwelling has a floor space ratio of 0.33:1. The current planning provisions allow for a development of 0.34:1 and so the size of the dwelling is not in issue. In council's opinion it is the essence of the second kitchen that makes this a second dwelling. I note second dwellings are permissible in the zone. That is not the question. Second dwellings are only permissible up to a certain size, that is, 60 sq m or 25 %, whichever is the greater of the floor area but the question for the Court simply is, is this modification application of the same essence? 14The dual use of the laundry is not peculiar or unusual to multi dwellings either but in my assessment of the application it is also not unusual for dwelling houses of this size to contain two kitchens and furthermore when one looks at the configuration of the open space around the dwelling and the entrances, large dwelling houses invariably have more than one entrance. This is not unusual either. In terms of the floor plan I am satisfied that the building will function as a single dwelling house. Whilst it is not a matter for my assessment in terms of the threshold question the Council has proposed and the applicant does not object to a condition which requires the imposition of a s 88 instrument such that it only be used as a single dwelling house. 15In my assessment in terms of a qualitative and a quantitative assessment having regard to the essence of the development I am satisfied the threshold question of substantially the same development is satisfied and the application can proceed to be assessed on its merits. For the merits of the application under s 96 I must have regard to those provisions under s 79C that are relevant to the assessment of the application. 16The builtupon area is one of the questions in terms of whether it provides sufficient soft landscaped area. The plans or the asbuilt as opposed to the s 96 plans are significantly different in that the applicant proposes that much of the hard paving or a significant proportion of the hard paving area be reinstated such that it can contain soft landscaping. That is in terms of in particular the northern courtyard That is to be landscaped and the other areas of the driveway which are to be reduced in size that would still provide for manoeuvrability and access to the garage area, basement garage area. The basement garage is accessed off side doors. They are not prominent in the streetscape as such. 17The proposed dwelling, if I can just go back one step in terms of substantially the same as well, I do note that in the original architectural plans the presentation of the dwelling in terms of the architectural integrity has not been executed in the same manner as shown in the original plans and clearly there has been a loss of presentation to the streetscape in terms of the dwelling itself. In this regard this would not alter my view that it is not substantially the same development. Some of the fenestrations have changed. I do note that but not to the extent in my assessment that would not fall within substantially the same development. The issue of built-upon area as I stated has been increased compared to the as-built situation and there are plans that show the as-built which shows an unnecessary amount of hard paved area. 18The other issue in terms of hard paved area or builtupon area is in terms of the viewing platform. The platform that is in the front yard of the subject property is at a very high elevation and in Mr Digman's evidence he considered that it would be a visual impact in terms of the heritage of the area, that is, when viewed from the conservation area opposite. The viewing platform itself cannot be seen from the heritage item behind. 19The applicant is prepared to make the floor of the viewing platform permeable and provide timber slats and the purpose of this, it is agreed between the tree experts, the landscape experts that this is necessary in terms of the longevity of the Sydney Blue Gum High Forest that is present on the subject site. The issue and an important matter is for the retention of the Sydney Blue Gum High Forest and the amended landscape plan before the Court, provides for the community to be retained. While it was not identified as such when the approval was granted by the Council nonetheless it is opportune in the assessment of this application to ensure the community is retained for the subject site. In this regard exotics and other plantings generally are not allowed within the highlighted area on the landscape plan that provides for this community. 20In terms of the viewing platform I am satisfied that the replacement of the concrete tiled platform with permeable timber slats will provide for the maintenance of the moisture regime and in this regard I am persuaded by the evidence of Mr Castor that the significant trees on the site will not be significantly impacted by the viewing platform. 21In terms of the visual impact of the viewing platform, as I said this site is significantly elevated in the streetscape. The viewing platform as could be seen on some of the photographs can be detected in certain views from the street, however, the visual impact in my assessment is one that would not warrant refusal of the application and it is not such an overwhelming or imposing structure when viewed from the street. Yes, it is clearly visible when viewed from the house itself, that is, the upper elevation, but not when viewed from the street as such and therefore whilst structures of this nature are generally not permitted within the front setback area of dwelling houses in Ku-ring-gai I am satisfied with the proposed landscaping and the retention of trees that are shown on the landscape plan in particular the Sydney Blue Gum High Forest I am satisfied that the visibility of the viewing platform would not warrant refusal, as it will not be an intrusive element in the overall context. 22This now takes me to the issue of the fencing and the fencing is one that is of concern to the Council. It can be seen that the dwelling house is surrounded by fencing which can be likened or akin to a compound in terms of the faux sandstone two-metre high fences that are around the subject site. The major concern to the Council is in terms of the streetscape presentation and this is not only of the front yellow toned fence itself but also in respect of what is called the bin or utility compound at the front of the subject site. During the proceedings it was agreed that the side fence to the southern property, that is, forward of the property to the south should be a sandstone base or retention of the existing block base and the demolition of the remainder of that front portion of the fence and palisade fencing constructed in its place. This will be in sympathy with the streetscape in terms of gardens being seamless between dwelling houses. 23In terms of the compound itself, the compound that is the small utilities area, houses a drainage outlet and a sewerage outlet and also electricity and other utility meters together with the letterbox. It can be reduced in height such that it is fourteen hundred at its maximum height from the ground and this is in my assessment an improvement that would justify approval of the service area. The service area with the demolition of the rows of blocks such that the maximum height is fourteen hundred whilst it will still be visible in the streetscape, I am also satisfied that given the heavily vegetated verge that we see to the north and partially vegetated verge to the south that it is not inappropriate especially where there is a footpath formed next to the street for planting forward of the fence line and in Ku-ring-gai generally this is not an unusual feature of the area. It adds to its leafiness and its character. 24As such it is appropriate that the vegetation of that portion, the triangular portion of land that is on the Council verge be vegetated in terms of Lilly Pillies being provided in the front of the 1400 wall. These Lilly Pillies will achieve a height of some three to four metres and as such that would be an appropriate outcome. 25Furthermore in the short term the yellow faux sandstone wall is most dominant in the streetscape and this is in many respects due to the colour. The fence to the north of the driveway provides for palisade fencing on a faux sandstone base with columns and in terms of the treatment of the fence, the fence is one in terms of its size. That is not unusual for Ku-ring-gai on large allotments of land and this is a very wide frontage to the street, and it is not dissimilar to what one sees on the opposite corner in the heritage conservation area but clearly there is importance in terms of the execution of detail. The sandstone fence it was agreed that it would be an improvement, whilst Council did not say it should be remain, but it would be an improvement if it is in fact rendered and painted or colour render applied to the front fence and similarly to the wall of the utility area facing the street. 26The fences surrounding the subject property are all approximately two metres in height. It is noted for the heritage building behind. There is also remaining a paling fence. The paling fence is on the boundary, the subject fence on the subject property is completely constructed including the footings on the applicant's land. 27Mr Digman is concerned that if the paling fence was removed that would impact on the heritage item. This application does not propose the removal of that paling fence and it is a matter for the future in terms of the two owners having to replace that paling fence at some time in the future and this applicant would also be responsible for the payment of the replacement of a paling fence. It is not an issue that these proceedings can resolve. However I am satisfied that the brick fence at the rear, the masonry fence, is one that does not impact on the heritage item and that is an important consideration in terms of Council's LEP. The concern also expressed by the Council was the camphor laurel tree. The camphor laurel tree is growing very close to the subject boundary and the brick masonry wall that has been constructed is in close proximity. Camphor laurel trees are, for this heritage item, is something that cannot be removed without approval and whilst they are generally regarded as noxious under the TPO of Ku-ring-gai, that is not applicable where it is within the heritage item. 28There was some concern about a root of this camphor laurel tree and that this may lead to a need for pruning, that is in particular a reduction in height. I am satisfied that the longevity of the camphor laurel tree is not unreasonably threatened by the existence and the remaining of the masonry fence as such. The other masonry fences, the Council contests that additional soft landscaping could be provided if the masonry fences are removed because of their footings and it could be seen from the photographs that yes clearly, especially for the front fence, the concrete footings have incurred into an area greater than the fence itself. 29Nonetheless in my overall assessment and having regard to the amount of landscaping that is to be reinstated, the ensuring that the Sydney Blue Gum High Forest species in community is protected and conserved. I am satisfied with the landscape plan that has been provided that it is not necessary, or that the fences are satisfactory. I recognise that my s 96 assessment must be on the basis of, as if it was not built, but in the context of this development application for modification that the walls are ones that are not unreasonable in the context and on a merits assessment are satisfactory and should be approved. It is noted that there is extensive landscaping proposed and this will filter one's view and in some places, screen the view of the concrete faux sandstone. 30For the front fence, it is also proposed that there be Lilly pillies grown, whether it be to a hedge, but these achieve a height of three to four metres which would be significantly higher than the fence that can be seen. I am satisfied that this will not be out of context with the area itself. The sandstone verge is one that will also be visible in the streetscape but the landscaping provides for some amelioration of the hard sandstone verge proposed. It would be more ideal clearly if the vegetation that appeared on the site in the archival photograph could be reinstated in some way but nonetheless this would not warrant refusal of the application. 31On the one hand the Council was concerned that the Council's land should not be used to mitigate and that the screening and vegetation should be contained on subject land as opposed to Council land. As I stated this is generally the case but it is not unusual also for landscaping to appear on verges and in the circumstances of this case, given the steepness of the verge, it is not an area of public domain that can be readily utilised in any event. 32The question of the neighbour to the south has been raised and the removal of the sandstone block forward of the dwelling house with a palisade fence is an appropriate resolution for this. The rendering of the walls or the boundary fences is only required for the front fence and for the bin and utility area of the subject development. It would be a matter of choice as to whether the applicant chooses to render other walls but with the landscaping and with the limited visibility from the street, I am satisfied that it is not a matter that I should impose for the rendering or coloured cementing or concreting or those fences and it only applies to those that have a presentation to the streetscape. 33In terms of the issues that the Council raised, I have address the issue of substantially the same, the second issue of the detrimental impact upon the streetscape. I am satisfied with the amendments and changes to the utility area and the rendering of the fence will provide for a presentation that is not antipathetic to the streetscape and indeed over time will blend with the streetscape. 34The issue regarding residential amenity, the bulk and scale of the fences, that is one that in terms of the adjoining neighbour to the south, the front of the fence has been modified to provide for a more appropriate amenity for that residence in the front yard. 35In terms of the streetscape I am satisfied the viewing platform will not be prominent in the streetscape. It is rather an unusual feature but that is not a reason to refuse the viewing platform. 36The adverse impacts on trees, I have had regard to the tree experts and in this regard I am satisfied that the trees are appropriately maintained with appropriate mulching and the conditions proposed to ensure that the Blue Gum High Forest area is conserved. 37The issue of insufficient information is covered in terms of the additional information that has been provided. As I said, the Council's experts also worked cooperatively in terms of the resolution of many of these issues which on first blush certainly appeared to be rather insurmountable. The turret or the large chimney that was erected on the dwelling house without approval is to be removed because clearly this is inappropriate and would impact on the streetscape and ther conservation area and the heritage item at the rear. The applicant has agreed that this feature be removed from the premises. 38The presentation of the dwelling house to the street is also to be improved by the addition of rendering of certain portions of the masonry faade at the front. The order is to also reflect that the hard paved areas to the north and the excessive hard paving for the driveway is also to be taken up and replaced with soft landscaping. 39The rendering of the fence and the reduction in the height of the wall to the front of the utility area will then also follow. But, as I stated, these must all be done within a period of twelve months. 40Therefore on the basis of my assessment, the parties are to draft detailed orders to reflect my findings above. 41Further to my findings above the parties filed draft orders in these two appeals and I make the following orders dated 29 June 2011 in chambers: Orders (1)The appeals in respect of No.16 Station Street Pymble are upheld in part. (2)The s 96 modification application as amended is granted consent subject to the consolidated set of conditions in Annexure 'A'. (3)The appeal against the 121B order is upheld in part and is substituted with the Order in Annexure 'B' that shows a schedule of works to be staged and to be completed within twelve months to Council's satisfaction. (4)The exhibits are returned to the parties except: 4,14A; M; N; and O. Jan Murrell Commissioner of the Court 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. Decision last updated: 11 July 2011