Codrington v Ku-ring-gai Council - [2005] NSWLEC 157

Land and Environment Court

of New South Wales

CITATION:
Codrington v Ku-ring-gai Council [2005] NSWLEC 157

PARTIES:
APPLICANT
Matthew and Bindi Codrington
RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):
11600 of 2004

CORAM:
Hussey C

KEY ISSUES:
Development Application :- Alterations to an existing house - construction of a pool and carport

DATES OF HEARING: 07/04/2005

EX TEMPORE JUDGMENT DATE:
07/04/2005

LEGAL REPRESENTATIVES:
APPLICANT
Mr S Kondolis, solicitor
SOLICITORS
Maddocks
RESPONDENT
Mr R Graham, solicitor
SOLICITORS
Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

7 April 2005
11600 of 2004 Matthew and Bindi Codrington v

Ku-ring-gai Council

JUDGMENT

1 This is an appeal against council’s refusal of a development application for alterations to an existing dwelling, construction of a pool and carport at No. 61 Fairlawn Avenue, Turramurra. The appeal concerns the carport component because it is located at the front of the property and encroaches on the designated 12 m building line.

2 For the appeal, the parties have agreed to the appointment of Ms K Gordon as the Court-appointed expert for planning and she has undertaken a detailed assessment of the proposal in terms of the prevailing controls, namely Development Control Plan 38, resulting in her conclusion that the proposal merits conditional consent.

3 However, Mr Aitken, council’s planner is still dissatisfied as he does not consider this proposal has sufficient regard to the DCP 38 “provision that where access to the rear is available, then the parking should be behind the building line.”

4 Having considered these competing positions, I note that s 5.5.3 of the DCP provides:

5.5.3 Design of Carports and Garages

The design of carport and garage structures should be sympathetic to existing development on-site and consider adjacent building as well as proximity to drainage systems. Carport and garage structures should not dominate the site or the streetscape.

The location of a carport or garage must have regard to:

the location of trees both on site and on the relevant adjacent site(s);
the position of windows and other structures on adjacent sites;
established streetscape; and
the heritage significance of heritage items and their setting and the heritage significance of conservation areas. Garages must not be located forward of the established building line:
where it is not possible to provide parking behind the building line only open sided carports will be considered in locations forward of the established building line;
setbacks from the street alignments should be maximised
Reverse egress to public streets is discouraged on busy roads and will not be permitted where the street has:
regional/ sub-arterial or state/arterial status under Council’s road hierarchy;
sight distances that are restrictive such as at bends or crests; or
where the required sight distances are not available;

Battleaxe lots will be required to provide sufficient turning space to allow vehicles to egress the site in a forward direction.

Note:

Turning areas where provided are to be designed to permit on-site turning via one reversing movement only. Refer to Australian standard 2890.1-1993 or…

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.

Continue reading Codrington v Ku-ring-gai Council

Details

AGLC: Codrington v Ku-ring-gai Council [2005] NSWLEC 157
Case: [2005] NSWLEC 157
Decision Date: 07/04/2005

CaseChat Overview and Summary

Matthew and Bindi Codrington appealed against the Ku-ring-gai Council's refusal of a development application concerning alterations to their existing dwelling, the construction of a pool, and a carport at 61 Fairlawn Avenue, Turramurra. The appeal focused on the carport component, which was proposed to be constructed at the front of the property and encroached on the designated 12-metre building line. The Court-appointed expert for planning, Ms K Gordon, concluded that the proposal was worthy of conditional consent. However, Mr Aitken, the council's planner, disagreed with this assessment, stating that the proposal did not sufficiently consider the Development Control Plan 38 provision that parking should be behind the building line if access to the rear was available.

The court considered the provisions of section 5.5.3 of the DCP, which outlined the design of carports and garages, including their location, design, and impact on the site and streetscape. The court also noted that clause 5.5.3 allowed for locational flexibility, permitting carports in the front of houses. Based on the assessment of Ms Gordon, the court agreed with her approach, considering that the adjoining house at No. 63 Fairlawn Avenue had a prominent double garage forward of the building line, which had a significant streetscape impact.

The court found that the design of the carport complied with the nominal 12-metre setback, with the brick piers complying with the setback requirement, and the roof overhang being the only non-compliant element. The court also considered the provisions of section 5.5.4 of the DCP, which required regard to be given to the established streetscape. In this case, the court observed that in the localised part of Fairlawn Avenue, there were a number of new houses with staggered building lines and prominent double garages forward of the building line. Additionally, there were carports that were well forward of the building line, with two carports at the building line and very dominant in the streetscape.

The court accepted Ms Gordon's conclusion that the proposal demonstrated reasonable compliance with the DCP objectives for the location of a carport. The court considered the proposal to be complementary to the existing dwelling, suitably subservient to it, and making a suitable contribution to the streetscape and character of the area. Therefore, the orders of the court were as follows:

1. The appeal is upheld.
2. Development Application No. 835/04 for alterations, construction of a pool, and carport at 61 Fairlawn Avenue, Turramurra, is granted subject to the conditions in Annexure A.
3. The exhibits may be returned except Exhibits A, B, C and 3.

Orders