Byron v Ku-ring-gai Council - [2005] NSWLEC 671

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION:
Byron v Ku-ring-gai Council [2005] NSWLEC 671

PARTIES:
APPLICANT
David Arthur and Dora Maria Byron
RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):
10473 of 2005

CORAM:
Hoffman C

KEY ISSUES:
Development Application :- Detached dual occupancy - tree loss - solar access and design for climate - stormwater - access - owners consent

LEGISLATION CITED:
State Environmental Planning Policy No. 53, Metropolitan Residential Development
Ku-ring-gai Planning Scheme Ordinance 1971
Environmental Planning and Assessment Act 1979

CASES CITED:
Pro-Vision Developments Pty Ltd v Ku-ring-gai [2003] NSWLEC 226

DATES OF HEARING: 26/08/2005 and 02/09/2005

DATE OF JUDGMENT:

11/24/2005

LEGAL REPRESENTATIVES:
APPLICANT
Mr S Kondilios, solicitor
Instructed by: Ms S Halls, solicitor
SOLICITORS
Maddocks
RESPONDENT
Mr R Graham, solicitor
SOLICITORS
Abbot Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

24 November 2005
10473 of 2005 David Arthur & Dora Maria Byron v

Ku-ring-gai Council

JUDGMENT

1 This is a Class 1 appeal No. 10473 of 2005 between DA & DM Byron v Ku-ring-gai Council in regards to the refusal of a proposal to demolish an existing house and erect a detached dual occupancy at Lot 3 DP 512105 being No. 38B Holmes Street, Turramurra.

2 The site is a battle axe lot with the access handle about 95 m long running between 4 houses, 2 on each side of the drive. No. 38A shares the driveway with the subject site and it is a house behind No. 38 that has full frontage to Holmes Street. No. 38A and 38B each have a 3.6 m wide frontage for their access and due to the number of trees along the 2 access corridors, the 2 lots share the one driveway which at present is formed by roadbase only, and appears somewhat like a bush track winding through the trees.

3 The main part of No. 38B has an area of about 1300 sq m with a width of 28.7 sq m and a depth of 45.4 m. Adjoining it on the south is No. 44 Holmes Street that is another battle axe lot, the existing house on it is built close to the common boundary and slightly uphill of the proposed House A of the dual occupancy. House B on the north side of the lot is more or less beside House A and they both only have space enough for a shared car courtyard between them and the eastern boundary adjoining No. 38A.

4 On the north side of the proposal just uphill of House B is the house on No. 36 Holmes Street another battleaxe lot.

5 A little downhill of House B is another house on a battleaxe lot being No. 32A Holmes Street.

6 No. 40 Holmes Street is on the south side of the driveway being a standard sized frontage to the street similar to No. 38 on the north side of the drive.

7 The land rises slightly from Holmes Street cresting at No. 38A and then sloping down through No. 38B and beyond down hill. There is about a 6 m fall through the main part of the lot where Houses A and B are located with a flattish area just below the proposed houses that forms a suitable backyard area for each. Retaining walls and backfill is proposed to level the yards. The yard for House B is adjacent the house on No. 32A and it has its master bedroom and en-suite adjacent the common boundary.

8 The proposal is to straighten and seal the driveway as a result removing a number of the existing large trees. There is an existing drainage easement through the next allotment down hill of the subject site. That property is No. 52 Findlay Street.

9 The issues in the appeal are:

State Environmental Planning Policy No. 53, Metropolitan Residential Development,

(b) Visual and acoustic privacy

(c) Solar access and design for climate

Eucalyptus pilularis

(d) Stormwater

(f) Accessibility

10 The respondents evidence was heard from:

Mr A Todicescu, objector and resident of No. 36 Holmes Street.
Mr S. Ramanathan, objector and resident of No. 38A Holmes Street.
Mr and Mrs Rowley, objectors and residents of No. 32A Holmes Street.
Mr and Mrs Bass, objectors and residents of No. 44 Holmes Street.
Mr and Mrs Kingdom, objector and residents of No. 40 Holmes Street.

11 The applicants evidence was heard from:

Mr I Glendinning, consultant town planner
Ms P. Howden, consultant arborist
Mr G. Paroissen, consultant arborist

12 There were drainage plans and environmental plans by Mr S. Fryer engineer in Exhibits D and E but he was not required for examination.

13 During the hearing the parties agreed to alter the driveway proposal to retain most of the trees along the shared access.

14 The owner of half of the access Mr Ramanathan maintained his objection to the proposal, and did not give his consent to the use of his part of the access for the proposal.

15 Involved in the access the need for a passing bay for 2 reasons. The first being the length of the driveway and the second being that the rise to the crest adjacent No. 38A. These prevented drivers seeing each other before entering the single lane drive. It created the need for a passing bay and the best location is at the crest on No. 38A’s land but within the reciprocal right of way. Another passing point can be arranged at the drive entry by having a wide footpath crossing.

16 At the end of the driveway where it enters the shared car courtyard widening may be needed to accommodate a car waiting for another to come through.

17 With changes to preserve existing trees the parties agreed this amended layout for the driveway would be satisfactory. A passing bay adjacent No. 40 was deleted.

18 The applicant submitted that the driveway and the passing bay were uses permitted by the terms of the right of way. Mr Ramanathan was concerned the passing bay might become a parking bay but the council’s engineers gave no evidence to support that.

19 Mr Ramanathan and the other neighbours wanted the majority of trees kept and that had been agreed and suitable supplementary bushland vegetation would be added.

20 In particular Mr Ramanathan liked the existing informal look of the driveway. The applicant had changed the pavement to follow the existing route winding through the trees, and now proposed 50 mm of compacted sand on top of the existing road base and pavers of porous materials to further protect the existing trees and not disturb their root systems. Mr Ramanathan said he did not like pavers; the applicant said the final colours or blend of colours in the pavers or other surface finishes would be discussed with Mr Ramanathan and be to his choice.

21 The applicant had also conceded to install a chain mesh fence along the driveway southern side instead of a paling fence to keep the open bushland appearance the neighbours wanted. They were not greatly concerned about privacy.

22 The respondent submitted that although the parties had reached a point of satisfaction on the merits of the driveway, there remains a primary obstacle to consent namely that neither the previous owner of No. 38A nor the recent purchaser Mr Ramanathan had given consent to the application for works on No. 38A.

23 Although the ROW might permit the uses and works proposed there is still a need for a development application and development consent the respondent said. Without an owners consent for the proposals on No. 38A, there is no valid development application and therefore no consent is possible. Nor was there any consent from No. 52 Finlay Street for the drainage works in that easement.

24 The applicant said, the shared access on No. 38A and the terms of the easement on No. 52 means that if any owners consents are needed they are implicit to the terms of the access and easement.

25 I am inclined to agree with the applicants submission particularly as such an estoppel would pose a question of law that should have been raised at the time of setting the issues and referred to the Chief Judge for determination prior to any Class 1 Hearing such as this. The respondent did not do so and still does not press the matter as a question of law. Although Mr Glendinning’s Statement of Environmental Effects said, owners consent had been obtained, that could include the original grantors of the right of way and the easement. The respondent said Mr Ramanathan’s consent is required, but based on the applicant’s submissions I do not agree. The proposal is only to do such works as are permitted under the terms of those titles and pars 30 and 31 of Pro-Vision Developments Pty Ltd v Ku-ring-gai [2003] NSWLEC 226 Lloyd J support this.

26 The application was lodged under State Environmental Planning Policy No. 53 Metropolitan Residential Development (SEPP) and therefore the prohibition of dual occupancy in the Residential Zone 2(c) of the Ku-ring-gai Planning Scheme Ordinance 1971 is overcome and the proposal becomes permissible under SEPP 53 and the Environmental Planning and Assessment Act 1979.

27 Mr Paroissen said that due to the redesign of the driveway most trees could be kept. From numbered trees in Exhibit G these included:

T1 A blackbutt on the footpath just outside the street boundary
T2 A bloodwood just inside the boundary
T3 A camphor to be removed it is considered a weed in the bushland
T4 Is in poor condition and should go
T5 A redgum to stay
T6 A bluegum to stay
T7-T13 All to stay
T14-T16 deletion of passing bay adjacent No. 40 Holmes Street enables retention although T14 is in decline
T17 Can be kept with drive route staying as is
T18-T24 Can be kept.
T25 Is in irreversible decline and should go
T26-T29 To be kept even with passing bay at crest of hill
T30 Is in irreversible decline and should go
T31-T32 To be kept
T33 not on subject land and can remain due to pavement redesign to minimise impact
T34-T35 To be kept. Best to leave existing concrete adjacent T34 rather than rebuild that part of the driveway.

28 As a result the driveway can keep its current appearance and with supplementary endemic shrub plantings it will give some privacy to neighbours either side of the driveway whilst enhancing the bushland. The passing bay adjacent No. 38A is to have shrubs planted between the trees and will screen it from the house and garden. The council agreed to leave the existing concrete of the driveway near T34 and it would still provide acceptable sight lines for drivers.

29 Other trees potentially affected by the development are:

30 Stormwater pipes have to be moved away from T45 and T46 to avoid root zones requiring amendment of Exhibit D. Also pier footings to be used adjacent to T43 and T46. And the stormwater drain shown in Exhibit D under the driveway is to be deleted to avoid trenching through the roots of the various trees from T25 to T34. Drainage to be done by surface drainage along a kerb gutter to bring water down to the car court drains. Provision of water and power and telephone supply and any potential damage to trees and their protection needs to be finalised.

31 The respondent accepted this evidence but pressed the objectors other concerns.

32 The applicant accepted the draft conditions in Exhibit 13 except for condition 73 and 74 that required bonds for on-site landscaping. The applicant submitted that under the Court’s adopted Planning Principles there was no legal basis for the imposition of such bonds. The applicant would accept performance conditions in lieu and changes to the conditions as marked in Exhibit J intended to satisfy the objectors other concerns.

33 In regard to detention systems; to minimise structures adjacent No. 52 Finlay Street the detention tanks have been located just downhill of House A and House B so that only pipes are needed down the drainage easement on No. 52. The arborists agreed that thrust boring for the pipes should be possible to avoid damage to most trees along the easement and that final design for that could be a deferred commencement condition. Since the house on No. 52 is close up to the rear boundary of the subject property it was agreed by the parties that a chainmesh fence 1.5 m high similar to the changed fencing on the other boundaries was appropriate to minimise the height and bulk of a fence immediately uphill of the house. Conditions were to be imposed so retaining walls did not affect trees T45, 48 and 49.

34 Mr Todicescu is a music teacher who gives some classes at home. He is very concerned about construction noise affecting his work. There may be some times during construction that his teaching may be disturbed. This would be the case with any new house being built nearby. I cannot put such weight on that impact to say the proposal must be refused. Mr Todicescu does have the option to do all his classes at the conservatorium or his school during periods of construction that would disturb him, such as during excavation.

35 Mr and Mrs Kingdom of No. 40 Holmes Street had major concerns about the original driveway design and loss of trees that would affect the amenity of their backyard recreation space and the possibility make existing trees unstable by removing their protection from winds and cutting their roots. Mr Paroissen’s evidence had largely satisfied their concerns on these matters.

36 The additional traffic of about 6 vehicle trips per day from the additional house on the site was not a concern of the council engineers Mr Hawken or town planners. Safety and noise and fume amenity impacts would be very low. Mr Hawken supported the amended driveway layout for driver safety. The passing bay adjacent the Kingdom’s outdoor dining area is now deleted and shrub plants are to take place and increase privacy. The planting would be acceptable as the Kingdoms were not particularly concerned about privacy. Currently neighbours could see into each others yards due to the lack of fences and they all said they preferred the friendly community that the lack of fences created. A chain mesh fence now proposed is preferred to a paling fence.

37 Services were another concern since water, power and telephone services needed to come down the access handle. Sewer was connected on the downhill end of the site. Existing power and telephone and water conduits were underground and their capacity for two dwellings was not known at the hearing and needed to be included in conditions to ensure no impact on the trees now intended to be saved. The applicant said if such services needed duplication or enlargement thrust boring could be done to avoid impacts.

38 Protection fences for driveway trees during construction were in the draft conditions as being erected on the boundary lines of the access handle. There was no danger to the trees from neighbours, and they are the only persons such fences would keep out. Clearly the tree protection fences had to be along both sides of the existing driveway track to prevent impact from vehicles entering and leaving whilst providing construction access to the site and vehicle access to No. 38A.

39 Mr and Mrs Bass at No. 44 are a battleaxe lot adjoining proposed House A. They are concerned about heavy vehicles using the access drive and affecting their boundary retaining wall. Excavation for the proposed houses might also cause additional damage and siltation. Flooding to their subfloor areas happened when the existing No. 38B was built. Siltation had redirected overland flows

40 House A is proposed on The Bass’s downhill side adjacent the rear of their house. This avoided shadows from House A affecting their northern windows as did the use of a chain mesh fence instead of a paling fence.

41 However it meant House A shaded the northern side of their backyard just below the house, and they said its height and bulk would dominate their aspect from their back verandah. The verandah served their major living rooms, and from it, was a pleasant outlook to their vegetation and the bushland beyond.

42 The applicants’ evidence is that House A is stepped down the hill. Its rear section is single storey and close to ground level to enable easy access to the backyard.

43 The front part of the house adjoining the car court is also single storey and the 2-storey section of the house is excavated almost a full storey in the northern side thus minimising the height and the bulk. The rear section of House A has a 6 m side setback to the Bass’s boundary and whilst the ground floor of the house has 1.5 to 2.5 m variable setback the upper storey has a 3 and 4 m variable setback as required by SEPP 53.

44 The Floor Space Ratio allowed is up to 0.5:1 and the proposal is 0.36:1. The permissible site coverage is 60% and the proposal covers only 40% so the development cannot be said to be trying to maximise the building.

45 In terms of shadows the applicants evidence is that in mid winter at 9am the shadow of House A goes about half way across the Bass’s yard covering about a quarter of the total area. By midday, the shadow of House A is only slightly more than the shadow caused by the boundary fence. Not long after midday there is no shadow on No. 44.

46 At the equinoxes in March and September the 9 am shadow is for a small distance only about twice that of the boundary fence shadow and about the same as the boundary fence at midday. The shadowing is acceptable in impact.

47 The major outlook from the Bass’s verandah is directly downhill to their own vegetation and trees beyond. House A would be seen to the side through the canopies of their own trees, but could not be said to be such that refusal is in any way warranted.

48 The plans showed an air-conditioning unit on House A adjacent the North East corner of the Bass’s house. That corner contains a bedroom and I agree the air-conditioning unit must be relocated further away, at least to be outside the Meals Room of House A.

49 The Bass’s concerns about trees I believe to be satisfied by Mr Paroissen’s evidence. Their concerns about damage due to construction vibration etc can be dealt with by having conditions for dilapidation reports before work commences and repairs where needed and safe work practice requirements for dust control and asbestos removal.

50 Perhaps their primary objection is that this form of development is “inner city medium density” which is in their opinion not in character with the leafy spacious properties of Ku-ring-gai.

51 The applicant’s position is that on the allotment of 1300 sq m, one house per 650 sq m is not medium density and each house has a backyard in excess of 250 sq m.

52 SEPP 53 allows allotments down to as small as 230 sq m for integrated housing or less than the size of the backyard of each house in the proposal. That would be inner city medium density. The proposal is low density. In detached dual occupancies such as the proposal, SEPP 53 allows an allotment down to 600 sq m area to have 2 houses on it. That is double the density of the proposal.

53 Whilst it is true in the Residential 2(c) zone of the Ku-ring-gai Planning Scheme Ordinance the proposal is prohibited, the applicable legislation of SEPP 53 overcomes that. The applicant put the reason for SEPP 53 applying to Ku-ring-gai is due to the State Government’s decision that Ku-ring-gai Council has failed to provide an adequate strategy for housing growth in its part of Sydney.

54 The applicant’s evidence is that the proposal complies with the requirements of SEPP 53 and although the Ku-ring-gai Dual Occupancy Code is over ridden by SEPP 53, the proposal complies with all of its requirements except side boundary setbacks. The Code requires 3 m setback and that is not achieved at the ground floor level, but it is achieved at the second storey level. The setback of the second storey on both houses gives articulation and reduces visual bulk as seen from the neighbours. The stepping of the house down the hill and partial excavation reduces height and bulk. When the proposed vegetation grows the buildings appearance will be further softened.

55 Both House A and House B have been assessed under the BASIX requirements and achieve a satisfactory sustainability index and solar orientation.

56 At No. 32A the Rowley’s house is down hill of House B approximately adjacent its proposed backyard.

57 The Rowley’s main bedroom and other bedrooms have large glass windows facing to the north in the direction of House B. Some windows of House B would look directly down to them.

58 Currently the Rowley’s enjoy a leafy outlook to boundary vegetation. Most of this is on, or close to the boundary, on top of a natural embankment that rises from No. 38B about 1 m up to No. 32A. The erection of a paling fence could necessitate removal of the vegetation on the subject site. Also tree numbers T42, T43, T50 were just on No. 32A and could be affected by construction. Trees T48 and T49 were just on No. 38B. Exhibit G the tree survey had not identified other trees near the boundary.

59 The Rowley’s said for the past 35 years neighbours had agreed no fences except for swimming pools, in order to keep the open bushland appearance and to enable local fauna to maintain movement corridors.

60 The Rowley’s were also concerned about demolition dust control and asbestos removal. They asked for a dilapidation report prior to construction and that excavation methods be made to minimise noise and vibration.

61 The construction process concerns were answered as mentioned previously by the council’s draft conditions.

62 The concern about fencing and privacy of the bedroom windows were answered by the applicant volunteering to fix the lower sash of the window to bedroom 3 of House B and have obscured glass to 1.6 m above the floor. To prevent overlooking from the Family room windows and deck of House B, a privacy screen was also volunteered to be placed on the boundary as marked in green in Drawing 1806/05 Amendment B in Exhibit A. It is to be 4 m long 2.9 m high measured from the ground at each point along its length. The boundary fences to be chain mesh 1.5 m high except for the length of the south west boundary between House A and the street that is to be 1.2 m high.

63 Mr Ramanathan was a little disconcerted that during the process of purchasing No. 38A, he had not been advised of the proposal. He said he would not have bought had he known. The attractions of the existing property are:

Open outlook
The garden
Tree lined driveway
Rustic quality
Tranquillity
Nature surroundings

64 He has dust allergies. Also he wanted to escape the city. The proposal was like the city following him to Ku-ring-gai.

65 The impacts of the proposal he envisages are:

Additional hard paving
Loss of Trees
New fence especially a timber fence
Destroying open character of the area
Changes to the driveway including the passing bay adjacent his vehicle access to his house
Excavation, noise, dust vibration
Possible loss of T34 and T40 that are special to the attraction of his property
The density of the development
He gave no consent for works on his land

66 Having heard all the other evidence, and Mr Ramanathan having taken part in the hearing, I have come to the conclusion that along with the reasonable objections of the other neighbours, the applicant has accepted conditions of approval that mitigate the feared impacts of the neighbours to the extent that refusal on merits is not justified.

67 The need for Mr Ramanathan’s consent to the development application I have already dealt with. Therefore the Orders of the Court are:

1. The appeal is upheld.

2. Deferred development consent is granted to a detached dual occupancy development at No. 38B Holmes Street, Turramurra as shown on plans in Exhibit A being Drawing Nos. 1806/1 Amendment B, 1806/02 Amendment B, 1806/03 Amendment B, 1806/04 Amendment B, 1806/05 Amendment B as annotated in green, all by Rob Crump Design, and landscape plan in Exhibit C being drawing LPO1 Rev B by Patio Design and Stormwater Drainage Plans Nos. SW01, SW02, SW03 all amendment A by Stephan Fryer Engineers and Sediment and Erosion Control Plans 1295SEO1 and SEO2 by the same engineers, and the arborist reports and management plans by Melanie Howden in Exhibit H and Mr G. Paroiessen’s report and tree location map in Exhibit G all as further amended by the conditions in Annexure A hereto.

3. The exhibits are returned to the parties except Exhibits A, C, D, E, G, H, J and Exhibits 1, 2, 4 and 13.

4. No orders as to costs.

___________________

K G Hoffman

Commissioner of the Court

Actions

Download as PDF Download as Word Document

Citations

Byron v Ku-ring-gai Council [2005] NSWLEC 671

Cases Citing This Decision

0

Cases Cited

1

Statutory Material Cited

3

Pro-Vision Developments Pty Limited v Ku-Ring-Gai Municipal Council [2003] NSWLEC 226

CITATION:	Byron v Ku-ring-gai Council [2005] NSWLEC 671
PARTIES:	APPLICANT David Arthur and Dora Maria Byron RESPONDENT Ku-ring-gai Council
FILE NUMBER(S):	10473 of 2005
CORAM:	Hoffman C
KEY ISSUES:	Development Application :- Detached dual occupancy - tree loss - solar access and design for climate - stormwater - access - owners consent
LEGISLATION CITED:	State Environmental Planning Policy No. 53, Metropolitan Residential Development Ku-ring-gai Planning Scheme Ordinance 1971 Environmental Planning and Assessment Act 1979
CASES CITED:	Pro-Vision Developments Pty Ltd v Ku-ring-gai [2003] NSWLEC 226
DATES OF HEARING:	26/08/2005 and 02/09/2005
DATE OF JUDGMENT:	11/24/2005
LEGAL REPRESENTATIVES:	APPLICANT Mr S Kondilios, solicitor Instructed by: Ms S Halls, solicitor SOLICITORS Maddocks RESPONDENT Mr R Graham, solicitor SOLICITORS Abbot Tout