Clare v Ku-ring-gai Council

[2005] NSWLEC 484

Land and Environment Court

of New South Wales

CITATION:

Clare v Ku-ring-gai Council [2005] NSWLEC 484

PARTIES:

APPLICANT
Robert and Sue Clare

RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):

10465 of 2005

CORAM:

Tuor C

KEY ISSUES:

Appeal :- Torrens Title subdivision into two allotments
Impact on significance of heritage item

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Ku-ring-gai Planning Scheme Ordinance

DATES OF HEARING:

05/08/2005

EX TEMPORE JUDGMENT DATE:

08/05/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr S. Kondilios, solicitor
of Maddocks

RESPONDENT
Mr R. K. Graham, solicitor
of Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

5 August 2005

10465 of 2005 Robert and Sue Clare v Ku-ring-gai Council

JUDGMENT

1 This is an appeal against the refusal by Ku-ring-gai Council of an application for Torrens Title subdivision of No. 7-9 Stuart Street, Wahroonga, into two allotments.

2 The site, being Lot 1 DP 582063, is rectangular in shape, has an area of 4623 sq m and is located on the corner of Stuart Street and Illoura Avenue. A substantial house known as “Cedarbank” is situated about 30 m back from both street frontages. There is also the former servants’ quarters and garage located on the north-west corner of the site. The surrounding grounds are landscaped with large trees and shrubs, a formal driveway off Illoura Avenue, a swimming pool and tennis court. The main house is located about 4 m above the level of Illoura Avenue and is also above the level of Stuart Street.

3 The proposal is to subdivide the site into two lots:

· Lot 1 would contain the existing house and would have an area of 3,347 sq m, a frontage to Illoura Avenue of 69.7 m and to Stuart Street of 48.03 m.

· Lot 2 would have an area of 1276 sq m, a frontage to Stuart Street of 18.3 m and a length of 69.74 m. Lot 2 would be located on the eastern part of the site where the tennis court is currently located and would be accessed off Stuart Street.

4 The property is listed as a heritage item under Ku-ring-gai Planning Scheme Ordinance (KPSO). Clause 61(d)(2) of KPSO provides:

The council shall not grant consent to a development application under subclause (1) unless it has taken into consideration the extent to which the carrying out of the proposed development would affect the heritage significance of the item and any stylistic or horticultural features of its setting.

5 Clauses 58B(3)(c) of KPSO specifies a minimum allotment size of 929sqm and a minimum frontage of 18m. The proposed lots comply with these standards.

6 Mr L Tropman, the Court appointed heritage expert, considered that the primary significance of the house and its setting was its presentation to Illoura Avenue and to the Stuart Street corner. He stated that:

the main components of the garden which interpret Cedarbank’s grandeur in the street are the entry drive, arrival area, presentation garden (with maturing trees), front shrubbery and recreation area and shrubbery. The principle street presentation of Cedarbank is to Illoura Avenue and this should remain intact.

7 Mr Tropman did not consider that the tennis court contributed to the significance of the item. He stated that the tennis court fence already subdivided the house from this part of the site. Nor did he think that the presentation of the eastern façade, or maintaining the setting of the main house for it to be viewed in the round, was important due to the elevated nature of the site and the vegetation. In his opinion the eastern elevation of the house was already obscured from the street.

8 Mr Tropman considered that the construction of a new dwelling on the proposed allotment would not impact on the significance of the item if it were set back from Stuart Street to maintain a landscape setting to the street and to Cedarbank. He stated that:

the proposed subdivision will remove part of the recreational components of the landscaped garden from the existing residence. This line of subdivision will have an impact on how the terrace is used and how the recreation area (pool) and shrubbery and utility court are used and modified to cater for changes.

Building a new residence and providing for vehicular movement would require careful design development to ensure a good quality integration with the existing residence and retained trees.

9 While I consider that space on all sides of the house would be desirable, particularly as it would maintain views from the existing house, I accept Mr Tropman’s opinion that the primary significance of the item is its presentation to Illoura Avenue and to the Stuart Street corner. The view of the eastern part of the site is restricted by the topography of the land and vegetation. It is therefore feasible to construct a house on the proposed allotment that, if set back from Stuart Street, would not be read in conjunction with the existing house and would not adversely impact on its significance.

10 Mr Tropman investigated the location, form and access to a proposed house, but schematic or indicative plans were not prepared by the applicant. Such plans would normally assist in determining the appropriateness of the proposed subdivision and its ability to be developed for residential purposes. However, without the assistance of such drawings, I am satisfied that the proposed allotment could accommodate a dwelling of the bulk and scale that is anticipated under the KPSO and council’s Residential Development Control Plan.

11 The proposed allotment is large, even by Ku-ring-gai standards, the existing tennis court provides a building platform that can reasonably accommodate a house. The proposed conditions, agreed to by the applicant, limit the location of any proposed house and its access driveway and require the retention of the existing Atlantic Cedar tree to the south of the tennis court. Other existing trees in this area are in poor condition and can be removed by a future development. However, retention of the landscape character to the east of Cedarbank, as identified by Mr Tropman and the council officers, is important. Any future house on the site would require careful design and its impact would also need to be assessed under cl 61 of KPSO. Despite these constraints, I am satisfied that the allotment can be subdivided and developed without adversely affecting the significance of the item.

12 Council raised the issue of the precedent that subdivision of the site would set. While I acknowledge that it would technically be feasible to create another allotment that complied with the standards in KPSO, such an application would need to be assessed under cl 61 and it is clear from Mr Tropman’s evidence that such a proposal is likely to adversely affect the significance of the item. Approval of this application should not be interpreted as a precedent for further subdivision of the site.

13 The only condition in dispute related to the s 94 contribution and to whether it should be imposed on the subdivision approval or the approval of a house at a later stage. The s 94 plan states that it applies to subdivision of land for residential purposes, and s 8 specifies when contributions are payable. It states:

In the case of Development Applications involving subdivision, before the release of any construction certificate related to subdivision works or the release of the linen plans, whichever occurs first.

14 It has a separate category for applications that relate only to building work or to applications that relate to both subdivision and building work. I accept Mr Graham’s submission that it is the subdivision of the land that generates the increased demand and that that the s 94 condition should be imposed on the application at this stage.

15 The orders of the Court are:

1. The appeal is upheld.
2. Development Application for Torrens Title subdivision of 7-9 Stuart Street, Wahroonga, into two allotments is approved, subject to the conditions in Annexure “A”.
3. The exhibits, except exhibit A and 3, may be returned.
4. No order as to costs.
_________________________
Annelise Tuor
Commissioner of the Court
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