Ahmadian v Ku-ring-gai Council - [2009] NSWLEC 1077

Land and Environment Court

of New South Wales

CITATION: Ahmadian v Ku-ring-gai Council [2009] NSWLEC 1077

PARTIES:
APPLICANT
Bijan Ahmadian
RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S): 11007 of 2008

CORAM: Tuor C - Adam AC

KEY ISSUES:
DEVELOPMENT APPLICATION :- detached dual occupancy development
removal of canopy trees, impact on endangered ecological community and streetscape
impact of bulk of new dwelling on exiting dwelling on the site
adequacy of private open space

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Threatened Species Conservation Act 1995
State Environmental Planning Policy No 1
State Environmental Planning Policy No 53 – Metropolitan Residential Development
Ku ring gai Planning Scheme Ordinance

CASES CITED: Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472
Mackenzie v Ku-ring-gai Council [2008] NSWLEC 1525

DATES OF HEARING: 5/03/09 and 06/03/09

DATE OF JUDGMENT:
31 March 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr I. Hemmings, barrister
Instructed by Atkinson Vinden Lawyers
RESPONDENT
Mr P. Marincowitz, solicitor
of DLA Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C
Adam AC

31 April 2009

11007 of 2008 Bijan Ahmadian 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 (DA776/07) under the Environmental Planning and Assessment Act 1979 (the Act) for a dual occupancy development on lot 5 DP 31547, 21 Vale Street, Gordon (the site).

2 The dual occupancy retains the existing dwelling (dwelling 1) on the site fronting Vale Street and proposes a new, detached dwelling off Craiglands Avenue (dwelling 2).

3 The key dispute between the parties centres on whether the proposal will adversely impact significant canopy trees on the site to the extent that the landscape character of the locality will be altered. Council is concerned that the separation between the houses is inadequate and that the proposed dwelling 2 would result in excessive bulk when viewed from dwelling 1. Council also contends that the amount of private open space for each dwelling is inadequate.

The site and its locality

4 The site has frontages to Vale Street and Craiglands Avenue. It is irregular in shape with an area of about 1097 square metres, and a steep fall of 14 metres from Craiglands Avenue to Vale Street. The existing dwelling is a part one/part two storey brick house with a single garage. It is set back about 14m from Vale Street.

5 The site, from the rear of the existing house to Craiglands Avenue, is heavily vegetated, with a canopy of tall trees. The understorey in the upper part of this area of the site is predominantly dense growth of non-native weedy species. On the lower part, closer to the existing house, there are a number of sandstone exposures. Between these areas, down slope from the large blackbutt (Eucalyptus pilularis) tree (Number 28), there are indications of previous artificial terraces.

6 The canopy includes species characteristic of the Sydney Turpentine – Ironbark Forest (STIF), an Endangered Ecological Community listed on Part 3…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWLEC 1077
Decision Date: 31 March 2009

CaseChat Overview and Summary

Bijan Ahmadian sought to appeal against the refusal by Ku-ring-gai Council (the council) of a development application (DA776/07) under the Environmental Planning and Assessment Act 1979 (the Act) for a dual occupancy development on lot 5 DP 31547, 21 Vale Street, Gordon. The dual occupancy retained the existing dwelling (dwelling 1) on the site fronting Vale Street and proposed a new, detached dwelling off Craiglands Avenue (dwelling 2). The key dispute between the parties centred on whether the proposal would adversely impact significant canopy trees on the site to the extent that the landscape character of the locality would be altered. The council was concerned that the separation between the houses was inadequate and that the proposed dwelling 2 would result in excessive bulk when viewed from dwelling 1. The council also contended that the amount of private open space for each dwelling was inadequate. The Court was required to determine whether the proposal would have an unacceptable impact on the trees and streetscape and whether it complied with the relevant planning policies and controls. The Court found that the proposal did not demonstrate an understanding of the constraints imposed by the presence of the endangered ecological community on the site nor that adequate regard had been given to retaining the endangered ecological community and to ensuring its ongoing viability by replacement planting through the implementation of an adequate landscape plan. The removal or decline in the canopy of trees may also have visual impacts on the locality. The removal of 10 (including tree 28) of the 15 endemic or native canopy trees and the decline in the canopy or removal of two (trees 26 and 34) of the remaining five trees proposed to be retained will change the appearance of the site. This change will not be mitigated to any great extent by the replacement trees proposed. The Court found that the extent of tree removal on the site will change its landscape character to the extent that it will impact on its visual catchment and the landscape quality of the locality and for this reason the does not satisfy cl 32(a)(i) of SEPP 53 and the Objective in s 5 of the Code. For this reason the application must fail. The Court found that the proposal did not demonstrate that adequate regard had been given to the principles in cl 32(h) of SEPP53, particularly the building form does not relate to the site’s land form. A proposal which stepped down the site would present lesser bulk and achieve better neighbourhood amenity. The Court found that the lack of level private open space at ground level would of itself warrant refusal of the application. The Assessment Criteria in s 5.1.5 require that the siting of private open space consider factors such as outlook and natural features. It also requires that the open space should be of sufficient size to meet the needs of the residents. The Court found that an area of less than 25sqm may not be adequate to be the primary open space for a dwelling of this size. A split level proposal with the upper floor set back would provide greater opportunity for usable open space and would also reduce the bulk of the dwelling when viewed from the rear open space of dwelling 1. The orders of the Court were: 1. The appeal is dismissed. 2. The development application (DA776/07) for a dual occupancy development on lot 5 DP 31547, 21 Vale Street, Gordon is refused. 3. The exhibits, except Exhibit 3, may be returned.

Orders