Barhon Properties Pty Ltd v Ku Ring Gai Council
[2004] NSWLEC 119
•03/30/2004
Land and Environment Court
of New South Wales
CITATION: Barhon Properties Pty Ltd v Ku Ring Gai Council [2004] NSWLEC 119 PARTIES: Ku Ring Gai Council FILE NUMBER(S): 11471 of 2003 CORAM: Tuor C. KEY ISSUES: Development Application :- Dual Occupancy development
Impact on streetscape character
sunlight to private open spaceLEGISLATION CITED: Ku Ring Gai Planning Scheme Ordinance
State Environmental Planning Policy No 53CASES CITED: DATES OF HEARING: 29/03/04 EX TEMPORE
JUDGMENT DATE :03/30/2004 LEGAL REPRESENTATIVES: RESPONDENT
APPLICANT
Mr J Hones, solicitor
Hones Lawyers
Mr S Simmington, solicitor
Phillips Fox
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
11471 of 2003
30 March 2004Tuor C
- Applicant
- Respondent
1 This is an appeal against the refusal by Ku Ring Gai Council (the council) of a development application to demolish an existing house and to construct an attached two-storey dual occupancy development at 2 Cadow Street, Pymble (lot 99 DP 13081).
2 The site is located on the southern side of Cadow Street at its intersection with Ryde Road. It is irregular in shape with a 28.3m curved northern frontage and eastern and western boundaries of about 53m and 56.5m respectively, with an overall area of 1047m2.
3 The site is generally level and has a single story brick house with an attached garage. There are a number of mature trees in the front garden. The surrounding area is characterised by one and two-storey dwellings set in well landscaped gardens. There is a recent dual occupancy development at 5 and 5a Cadow Street.
4 The site is zoned Residential C under Ku Ring Gai Planning Scheme Ordinance (KPSO). The proposed is permissible under State Environmental Planning Policy No. 53 - Metropolitan Residential Development (SEPP53).
5 The statement of issues contained eight issues. Most of these issues were resolved before the hearing. The two outstanding issues can be summarised as:
- i) whether the proposal has an acceptable impact on the streetscape because of the garages and hard paving area.
ii) whether the private open space receives adequate sunlight.
6 In relation to the first issue, the key question is whether the proposal meets the aim of SEPP 53 and is of “good design” having regard to the design principles in cl 32. Clause 32(a)(i) of SEPP 53 states that:
- The proposed development should:
- (i) contribute to an attractive residential environment with clear character and identity.
7 The town planning experts, Mr H Sanders, for the council, and Ms K Harragon, for the applicant, held different opinions as to whether this design principle was met.
8 Mr Sander’s opinion was that there was a distinct building line in Cadow Street and that the proposed double garage of Dwelling B and the garage and carport of dwelling A were situated forward of the building line and intruded into the front setback area. He stated that:
such a feature is uncharacteristic of existing development in the locality in that the garages in other properties generally present as much more recessive and less dominant elements. In my opinion, the proposal represents an inappropriate form of development, in any event, in that it presents a facade to the street that is dominated by garages and which consequentially appears as an unattractive and incongruous feature in the streetscape. As a result the proposed development will not be consistent with the character and identity of the existing residential environment and will not maintain appropriate residential character.”
9 Mr Sanders accepted that views of the garages would be from limited vantage points and that landscaping would screen them, but he did not consider this justified the location of the garages within this setback area. He also considered that the extent of hard paving exacerbated the impact of the garages on the streetscape.
10 Ms Harragon held the contrary view that the garages would not be dominant elements in the streetscape as they are set back a minimum of 12.5m from the front boundary and 18-29m from the kerb of Cadow Street. The garages are separated from each other and the garage of Dwelling B is separated from the house and at a different angle to the rest of the development. They are also within a landscaped setting and views of the garages would be limited to the 3.5 metre wide driveway opening. The setback, angle and landscaping mean that the garages would not be able to be viewed together facing the street.
11 Ms Harragon said that the extent of hard paving was characteristic of the street as most houses had large paved areas to facilitate entry for cars to and from the site in a forward direction. The extent of trees and other landscaping in the street resulted in the overall character of the street being one of buildings in landscaped settings, despite the extent of paving. In her opinion the proposal was consistent with this character.
12 I accept Ms Harragon’s opinion. The curved frontage of the site is different to other sites in the street and results from its location close to the junction of Cadow Street and Ryde Road. This means that the site responds to two streets. The current building line of dwellings in Cadow Street and Ryde Road forms an arc around this corner. For this particular site, a building line that followed the right angle of the street corner may also be appropriate. The proposed garages would then appear to be within the setback area of such a building line. While the garages exceed the existing building line they are set back from the street a considerable distance and are in landscaped settings, I therefore do not accept that they will appear as dominant elements in the streetscape. The hard paving area is similar to that provided for other dwellings in the street and will be screened and softened by the landscaping. I find that of themselves the garages and hard paving area do not result in a development that does not contribute to an attractive residential environment with clear character and identity.
13 In relation to access to sunlight, the design principle in cl 32 (c) of SEPP 53 requires that:
- The proposed development should, where possible:
- (i) ensure…..…adequate sunlight to substantial areas of private open space.
14 Mr Sanders did not consider that this principle was met as that part of the courtyard that adjoins the family room of each dwelling was the principal area of open space and would receive no sunlight during mid winter.
15 Ms Harragon accepted that the area of private open space directly off the family room would receive no sunlight but that substantial areas of the rear courtyard would receive direct sunlight. She estimated that approximately 75-90m2 of the courtyard to dwelling A would receive direct sunlight. The courtyard to dwelling B would receive approximately 90m2 of direct sunlight. These courtyards have areas of the 131m2 metres and 143m2 respectively and exceed the AMCORD recommendation in element 5.7 that 20% of the site be private open space. Mr Sanders agreed with these estimates.
16 While, I accept Mr Sanders evidence that it would be desirable for the open space directly off the family room to receive sunlight as this is the area most likely to be used. I do not accept that the design principle is not met as substantial areas of private open space will receive direct sunlight. The proposal provides 25% of its site as private open space to the south and rear of the dwellings and 60% of the site is landscaped area. The location of the private open space protects it from the traffic noise of Ryde Road and is consistent with the existing dwelling houses in the street which tend to have a front garden, garage facing the street, the house and then a rear garden facing south. The private open space will receive direct sunlight and I therefore accept that adequate sunlight is provided to substantial areas of private open space.
17 The Court heard from the adjoining resident, Mrs M Azzouni, 103 Ryde Road, Pymble. She was concerned about the view of the garage of dwelling B from the entry to her house. The garage is set back a distance from her house and from the common boundary with landscaping in between. I therefore do not consider that the location of the garage will have any adverse impact on the adjoining property.
18 The conditions were resolved during the hearing with the exception of condition and 53e and 77c. These conditions required a six metre wide driveway crossing and lay back. No evidence was provided to the Court as to why the wider driveway was required. Although, I understand that is to enable cars to enter and exit the driveway at the same time. The proposed 3.5 metre wide driveway limits views of the development particularly the garage areas and hard paving area. It also provides opportunity for landscaping and I note that the landscaped concept plan proposes three trees adjoining the driveway. The hard paving area provides manoeuvring area for the cars to enter and leave the site in a forward direction. The setback of the dwelling from the corner of Ryde Road and Cadow Street provides visibility for cars entering Cadow Street. I therefore do not accept that the six metre wide driveway is necessary, as it would provide greater exposure of the development, particularly the garage and hard paving, which was the main issue in this case. A wider driveway would also not be characteristic of the streetscape.
Orders
1. The appeal is upheld.
3. The exhibits, except exhibits A and 9, may be returned.2. Development application No. 1230/03 to demolish an existing house and to construct an attached two-storey dual occupancy development at 2 Cadow Street, Pymble (lot 99 DP 13081), is approved subject to conditions at Annexure “A”
- ____________________
Annelise Tuor
Commissioner of the Court
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