Avondale Properties Ltd v Ku-ring-gai Council - [2005] NSWLEC 216

Land and Environment Court

of New South Wales

CITATION:
Avondale Properties Ltd v Ku-ring-gai Council [2005] NSWLEC 216

PARTIES:
APPLICANT
Avondale Properties Ltd
RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):
11544-11548 of 2004

CORAM:
Hoffman C

KEY ISSUES:
Development Consent :- Overshadowing - privacy - construction damage to neighbours - height of proposed vegetation - bonds for landscaping on site

LEGISLATION CITED:
State Environmental Planning Policy No. 53
Rural Fires Act 1997
State Environmental Planning Policy No. 53
Environmental Planning and Assessment Act 1979

CASES CITED:
Datum v Botany [2003] NSWLEC 62

DATES OF HEARING: 11/04/2004

EX TEMPORE JUDGMENT DATE:
04/12/2005

LEGAL REPRESENTATIVES:
APPLICANT
Mr S Kondilios, solicitor
SOLICITORS
Maddocks
RESPONDENT
Mr P Marincowitz
SOLICITORS
Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

12 April 2005
11544 – 11548 of 2004 Avondale Properties Ltd v

Ku-ring- gai Council

JUDGMENT

1 This was five class 1 appeals Nos. 11544 to 11548 of 2004 inclusive between Avondale Properties Pty Limited and Ku-ring-gai Council in regard to the refusal of the proposal involving five appeals at No. 208 Comenarra Parkway, Turramurra.

2 The site was a long rectangular allotment 152 m x 15½ m. The street was on a ridge and the land sloped down to the south where its rear boundary abutted the Lane Cove National Park. There was dense bush in the park and a few large trees on the site at the rear boundary. The rest of the allotment had little vegetation except grass.

3 There was a neighbouring house on a similar allotment on the west at No. 210. On the east there were two allotments. One fronted the street and had an existing house, the other was a vacant battleaxe lot.

4 The original proposal consisted of five houses with subdivision. Negotiations between the parties had reduced this to three houses, the one closest the street on one allotment and the other two on a rear battleaxe lot. The proposal was permissible with consent under State Environmental Planning Policy No. 53. The proposals were lodged at a date in compliance with the savings clause of that instrument. The proposal was in three stages.

5 The first stage was to be dealt with under appeal No. 11544 of 2004 and proposed a house at the street end of the existing allotment and another towards the rear of the lot. Stage 2 was to be dealt with under appeal No. 11545 of 2004 and would create two Torrens title lots, one for each house. Stage 3 was to be dealt with under appeal No. 11546 of 2004 and proposed a second house on the rear allotment. Appeals Nos. 11547, 11548 of 2004 were to be discontinued.

6 The amended proposal had been allowed in the appeals by his Honour Bignold J. It had been re-exhibited for public comment and only one objection had been received from the owner and resident of No. 210 Comenarra Parkway, a Mrs Elliot. Her daughter, a Mrs Hardy, gave oral…

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: [2005] NSWLEC 216
Decision Date: 04/12/2005

CaseChat Overview and Summary

Avondale Properties Ltd appealed to the Land and Environment Court of New South Wales against the Ku-ring-gai Council's refusal to grant development consent for a proposed residential development on a site at 208 Comenarra Parkway, Turramurra. The appeal involved five class 1 appeals, Nos. 11544 to 11548 of 2004. The proposal, initially involving five houses, had been reduced to three houses through negotiations between the parties. The primary legal issues before the Court were whether the amended proposal adequately addressed concerns regarding overshadowing, privacy, construction damage to neighbouring properties, the height of proposed vegetation, and the imposition of bonds for landscaping on the site.

The Court examined the objections raised by the owner and resident of the neighbouring property at No. 210 Comenarra Parkway, Mrs Elliot, and her daughter, Mrs Hardy. These objections included fears of structural damage to their house due to excavation, shadow impacts on their eastern windows, privacy concerns from windows of the proposed houses, and impacts on the future development of the vacant battleaxe lot to the east of the proposal. The Court also considered the expert evidence and reports from town planners and bushfire experts, as well as the recommendations for changes to the proposal to address these concerns.

After reviewing the evidence and submissions, the Court found that the amended proposal had effectively addressed the concerns raised by the neighbours and the town planner. The changes included adjustments to the house setbacks, spacing and height of the houses, window treatments, vegetation height, and the installation of a driveway and rainwater tank for bushfire safety. The Court accepted that the proposed conditions for the development consent, including the bonds for landscaping, served a legitimate planning purpose and were reasonably connected to the proposal. The Court concluded that the amended proposal met the requirements of the relevant planning policies and did not impose undue impacts on neighbouring properties.

In its judgment, the Court upheld the appeals Nos. 11544, 11545, and 11546 of 2004, granting development consent for the three-house proposal in three stages, subject to the conditions set out in the judgment. Appeals Nos. 11547 and 11548 of 2004 were to be discontinued as per the orders of His Honour Justice Bignold on 14 March 2005. The Court directed that the exhibits be returned to the parties, except for certain specified documents.

Orders