Land and Environment Court New South Wales Medium Neutral Citation: Hew v Ku-ring-gai Council [2012] NSWLEC 1209 Hearing dates: 26-27 July 2012 Decision date: 03 August 2012 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is upheld. 2. Development Application No. 0525/11 for a townhouse development, including alterations and additions to the existing dwelling, at 5 Yarabah Avenue, Gordon, is approved, subject to the conditions in Annexure A. 3. The exhibits are returned, with the exception of exhibit 2. Catchwords: DEVELOPMENT APPLICATION: Consent orders; townhouse development; draft LEP; resident objectors. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Segal & Anor v Waverley Council [2005] NSWCA 310 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA Category: Principal judgment Parties: Mr Douglas Hew (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel Mr M. Staunton Barrister (Applicant) Dr S. Berveling Barrister (Respondent) Solicitors Pikes & Verekers Lawyers (Applicant) Wiltshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 12/10007 Judgment 1COMMISSIONER: This appeal comes before the Court for consent orders in relation to Development Application No. 0525/11 (the application) for alterations and additions to the existing dwelling and the construction of three townhouses to the rear of the existing dwelling and a basement garage, at 5 Yarabah Avenue, Gordon (the site). 2The appeal was subject to conciliation on 21 March 2012, in accordance with the provisions of s34 of the Land and Environment Court Act 1979 (LEC Act). As no agreement was reached during the conciliation phase, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act, on 19 April 2012. 3Prior to the hearing, the parties agreed to enter into consent orders, based on amendments made to the original application. The principle changes are: * The existing house is retained as a single dwelling and the block of three townhouses at the front of the site has been deleted; * The attic room to unit 2 and roof dormer on the western elevation has been deleted; * The attic room to unit 3 has been deleted; * The profile of the roof of the rear block of three townhouses has been amended to delete the ridge of the hipped roof and replace it with a pitched roof draining to a central valley, in order to look like two intersecting pyramid roofs. 4In considering the consent orders, the Court's Practice Note - Class 1 Development Appeals (paragraphs 35-6) provides: Application for final orders by consent of parties 35. When there is agreement prior to the commencement of a hearing of development appeals involving a deemed refusal of the application by the consent authority, the Court will usually expect the consent authority to give effect to the agreement by itself granting consent or approval. 36. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following: (i) the content of the proposed orders (including the proposed conditions of consent); (ii)the date of the hearing by the Court to consider making the proposed consent orders; and (iii)the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary. 5In accordance with the Practice Note, four local residents provided evidence at the consent order hearing. The residents' concerns can be summarised as: * The height, bulk and scale of the proposal remains unacceptable following the amendments made to the scheme; * The proposal seeks to take advantage of the 'window of opportunity' offered by the current planning framework, without reference to the objectives of the R2 zone and Yarabah Avenue heritage conservation area proposed by the draft Ku-ring-gai Local Centres Local Environment Plan 2012; * The site is less than the minimum site area of 1200m2 required by clause 25E of the Ku-ring-gai Planning Scheme Ordinance (KPSO) for multi-unit housing; * The neighbour to the west of the site said that the slope of the land exacerbates the impact of the proposal on her amenity as her property is lower than the site and the setback of the townhouse block from the side boundary shared with her property is insufficient; * The neighbour to the rear of the site cited the impact of the proposal on the heritage significance of his property, which is identified as a local heritage item. He said that the proposal would result in 3 rear courtyards adjacent to his outdoor area and asked that the three mature Camellias on the site, adjacent to the boundary, be retained. Planning framework 6The site is located with Zone No 2(d3), pursuant to the KPSO (Folio 286, Exhibit 1). 7Subclause 25E(1) of the KPSO states: Consent may be granted to development for the purpose of an attached dual occupancy, a detached dual occupancy, a residential flat building, three or more townhouses or villas or any other form of multi-unit housing on land to which this Part applies only if the land has an area of at least 1,200 square metres. 8Subclause 25I(4) of the KPSO states: Despite clause 25E, multi-unit housing may be carried out within Zone No 2 (d3) on a site that has a site area of less than 1.200 square metres, or a street frontage of less than 23 metres, if the proposed development complies with all other requirements of this Ordinance. 9The maximum number of storeys permitted is 3, pursuant to subclause 25I(5) of the KPSO and the maximum height permitted is 10.3 m, pursuant to the table to subclause 25I(8). 10Subclause 25I(9) of the KPSO states: Any storey which is used exclusively for car parking, storage or plant, or a combination of them, in accordance with the requirements of this Ordinance and no part of which (including any wall or ceiling which encloses or defines the storey) is more than 1.2 metres above ground level, is not to be counted as a storey for the purpose of the Table to subclause (8). 11Ground level is defined by the KPSO, at clause 25B, as: Ground level means the natural level of the ground before the erection of any building or carrying out of any work. 12Clause 25L of the KPSO, Zone interface, includes the following: (1) The objective of this clause is to provide a transition in the scale of buildings between certain zones. (2) The third and fourth storey of any building on land within Zone No 2 (d3) must be set back at least 9 metres from any boundary of the site of the building with land (other than a road) that is not within Zone No 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. 13Under the provisions of the draft Ku-ring-gai Local Centres Local Environment Plan 2012 (draft LEP), the site is proposed to be down-zoned to R2 and located within the C18 Yarabah Avenue heritage conservation area (HCA). Site area and setbacks 14The site area is 1173 m2, which is 27 m2 less than the 1200 m2 minimum site area required by subclause 25E(1) of the KPSO for a multi-unit housing development. Notwithstanding subclause 25E(1), subclause 25I(4) provides for multi-unit housing on sites zoned 2(d3) with a site area less than 1200m2, if the proposal complies with all other requirements of the KPSO. 15The parties disagree whether the proposal complies with all other requirements of the KPSO. The applicant submits that the proposal does comply with all other requirements of the KPSO and therefore satisfies subclause 25I(4) and the Council submits that the proposal does not comply with the zone interface requirements, clause 25L(2) of the KPSO. 16The adjoining property to the west of the site, 7 Yarabah Avenue, is zoned 2(c2) and the adjoining property to the north of the site, 724 Pacific Highway, is zoned 2(b). A third storey of the proposal must be setback from the shared boundaries with these properties by 9 m, pursuant to subclause 25L(2) of the KPSO. 17The parties disagree whether the upper floor of the proposal is defined as a third storey, on the basis of what constitutes natural ground level. The proposed town house block consists of a basement level with two storeys over and a corner of the proposal is located over the existing swimming pool. If the basement level is counted as a storey, by being more than 1.2 m above natural ground level, the proposal is three storeys high. Submissions 18The applicant submits that the natural ground level means the level of the ground in its natural state undisturbed by the erection of any building or the carrying out of any work. Where the ground level has been modified by the construction of the pool, it is necessary to interpolate natural ground level by finding those parts of the site that remain in their natural state. If the Court accepts the applicant's argument, then the basement level is not counted as a storey, pursuant to subclause 25I(9) and the proposal is two storeys high. 19The Council submits that the ground level is determined by a survey of the existing site and therefore the natural ground level is the bottom of the existing swimming pool. If the Court accepts the Council's argument, then the basement level is counted as a storey, as it is more than 1.2 m above natural ground level, pursuant to subclause 25I(9). It follows that the proposal is three storeys high and the third storey does not comply with subclause 25L(2) of KPSO. 20In the event that the Court accepts the Council's interpretation of natural ground level, the applicant relies upon a State Environmental Planning Policy No 1 - Development Standards (SEPP 1) objection to the development standard to setback the upper level from the north and west boundaries by 9 m. Findings 21The meaning of 'natural ground level' in the KPSO was considered by Acting Senior Commissioner (ASC) Brown in Staldone Corporation Pty Ltd v Ku-ring-gai Council [2012] NSWLEC 1055. ASC Brown relevantly found, at par 35 and 36: 35 First, the definition should be given its ordinary meaning. The fact that there are other different definitions of "ground level" in the Ordinance, in my view, supports the submissions of Mr Staunton. The definition in cl 25B post-dates the other definitions so it is clearly open for the Court to conclude that the draftsperson, for whatever reason, sought to distinguish the definition in cl 25B from the other definitions. Clearly, the draftsperson could have adopted either of the two existing definitions. I do not accept the submissions of Mr Robson that for the sake of consistency, the definition in cl 25B should be given a similar meaning to the other definitions when the terms of the definition in cl 25B suggest the opposite. 36 Second, the terms of the definition support Mr Staunton's submissions. The definition contains no reference to a specific period of time or temporal requirement such as the time "immediately prior to the lodgement of the development application" in Part IV of the Ordinance. The relevant references, in terms of interpretation, are to the "natural level of the ground" and "before with the erection of any (my emphasis) buildings or carrying out of any work ". Without any temporal requirement, it is clearly open for the Court to conclude that a reference to the natural level of land is a reference to the state of the land in its natural state and prior to any man-made activities. 22While I am not bound by ASC Brown's findings, (Segal & Anor v Waverley Council [2005] NSWCA 310), I agree with his interpretation of the meaning of 'natural ground level' in the KPSO. In considering the competing submissions, 'natural ground level' should be given its ordinary meaning. It follows that the ground level is the approximate level of the coping of the swimming pool and not the excavated bottom of the pool. The basement parking level, therefore, does not constitute a storey as it is less than 1.2 m above ground level and the proposal is two storeys high. 23The proposal satisfies subclause 25I(4), permitting a multi-unit housing development on land zoned 2(d3) with a site area less than 1200 m2, as the proposal complies with all other requirements of the KPSO. 24Consequently, a SEPP 1 objection to subclause 25L(2) of the KPSO is not required. However, for abundant caution, I have reviewed the SEPP 1 objection prepared by the applicant's planning expert, Mr Greg Boston and I accept its conclusion and find that the SEPP 1 objection is well founded. Draft LEP Submissions 25The experts agree on the following in relation to the draft LEP: * That the draft LEP proposes to down-zone the site to R2, low density residential. * Under the provisions of the draft LEP, a maximum FSR of 0.34:1 and height of 9.5 m is permitted for the site and the proposal would result in a FSR of 0.489:1 and is a height of 9.946 m at the apex of the western pyramid roof. * The site will be within the C18 Yarabah Avenue HCA. 26The planning experts agree that the proposal is not antipathetic to the objectives of the proposed R2 zone, as the bulk and scale of the proposal will not give rise to any unreasonable residential amenity impacts to neighbouring properties when assessed against the draft planning controls. 27The heritage experts agree that the amended proposal is an acceptable addition to the proposed HCA and the amendments to the roof address the Council's expert's concerns regarding the bulk of the proposal and its impact on the streetscape of Yarabah Avenue. 28Evidence was provided by both parties as to the certainty and imminence of the draft LEP; the Council stating that the draft LEP is certain and imminent as it has been exhibited and the report assessing the submissions is to be considered by Council on 31 July and the applicant stating that it is impossible to predict whether the draft LEP is certain or not and when it will be gazetted, as there are 6 pages of variations proposed in the report to Council and amendments to the draft plan may require it to be further exhibited. Findings 29Pursuant to s 79C(1)(a) of the EPA Act, the following must be considered in terms of the draft LEP: (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved) 30The weight to be attributed to a draft environmental planning instrument will be greater if there is a greater certainty that it will be adopted. Relevantly, Spigelman CJ states, at par 5 of Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289, the following: Mason P outlines the line of authority in the Land and Environment Court to the effect that the weight to be given to a draft environmental planning instrument will be greater after such an instrument has been gazetted on the basis of its "certainty and imminence". I agree with the proposition that the greater the certainty that a draft instrument will in fact be adopted, the greater the weight that may be given to that draft. 31I accept the submission of the applicant that the draft LEP is neither certain nor imminent, on the basis that, at the time of the hearing, Council had not considered the report assessing the submissions in response to the exhibited draft LEP, that the report proposes numerous variations to the draft LEP, that the draft LEP may be exhibited following the any amendments and that the draft LEP has not been notified to the Minister, pursuant to clause 79C(1)(a). 32The question of whether or not the draft LEP is certain and imminent is not fundamental to the proposal before the Court, as the planning and heritage experts agree the proposal is acceptable and is not antipathetic to the objectives of the draft LEP. I accept the conclusions of the experts. Conclusion 33In considering the amended plans and documents and agreed conditions of consent (Annexure A) and taking into consideration the issues raised by the objectors, I am satisfied that it is 'lawful and appropriate' to grant the consent, having regard to the whole of the circumstances, including the proposed conditions of consent. Orders 34The orders of the Court, by consent, are: 1.The appeal is upheld. 2.Development Application No. 0525/11 for a townhouse development, including alterations and additions to the existing dwelling, at 5 Yarabah Avenue, Gordon, is approved, subject to the conditions in Annexure A. 3.The exhibits are returned, with the exception of exhibit 2. Susan O'Neill Commissioner of the Court ANNEXURE A ********** 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: 03 August 2012