Cribb v Ku-ring-gai Council
[2005] NSWLEC 346
•06/27/2005
Land and Environment Court
of New South Wales
CITATION: Cribb v Ku-ring-gai Council [2005] NSWLEC 346
PARTIES: APPLICANT
Lisa CribbRESPONDENT
Ku-ring-gai CouncilFILE NUMBER(S): 10238 of 2005
CORAM: Hoffman C
KEY ISSUES: Appeal :- Refusal of a detached dual occupancy - streetscape - front setback - landscaping - open space -
LEGISLATION CITED: State Environmental Planning Policy No. 53
DATES OF HEARING: 27/06/2005 EX TEMPORE JUDGMENT DATE: 06/27/2005
LEGAL REPRESENTATIVES: APPLICANT
Mr B Hones, solicitor
SOLICITORS
Hones LawyersRESPONDENT
Mr P Marincowitz, solicitor
SOLICITORS
Phillips Fox
JUDGMENT:
In the Land and
Environment Court
of New South Wales
Hoffman C
27 June 2005
JUDGMENT10238 of 2005 Lisa Cribb v Ku-ring-gai Council
1 This is a class one appeal No. 10238 of 2005 between Lisa Cribb and Ku-ring-gai Council regarding refusal of consent for a detached dual occupancy at No. 71 The Chase Road, Turramurra. The allotment ran through from The Chase Road to Fairlawn Avenue.
2 The property on the north side had two detached dwellings already built on the subdivision of a similar allotment but a larger and wider allotment than the subject site. It also went through from The Chase Road to Fairlawn Avenue. It comprised No. 73 The Chase Road and No. 66 Fairlawn Avenue.
3 On the south side were No. 69 The Chase Road and No. 62 Fairlawn Avenue.
4 There is no proposal to subdivide the dual occupancy in this appeal.
5 The issues were:
1. Streetscape/Front setback of Dwelling A -The carport of Dwelling A is set back 7.7metres from the boundary with The Chase Road. The carport is inappropriately located and will detract from the residential environment and the existing streetscape. The position of the carport restricts suitable screen planting and canopy trees. The Dual Occupancy Code requires a minimum set back of 12 metres.
(SEPP 53, clause 32(a)(i), and 32(h)(c); Dual Occupancy Code, clause 4.9.1; KPSO Schedule 9, clause 2(e)).
2. Streetscape/Front setback of Dwelling B -The carport of Dwelling B is set back 3 metres from the boundary with Fairlawn Avenue. The carport is inappropriately located and will detract from the residential environment and the existing streetscape. The position of the carport restricts suitable screen planting and canopy trees. The Dual Occupancy Code requires a minimum set back of 12 metres.
(SEPP 53, clause 32(a)(i), and 32(h)(c); Dual Occupancy Code, clause 4.9.1; KPSO Schedule 9, clause 2(e)).
- 3. Streetscape/Front fence of Dwelling B -The proposed front fence of Dwelling B to Fairlawn Avenue does not maintain streetscape character and is not consistent with the established pattern of fences in Fairlawn Avenue. The absence of front fencing is a distinguishing streetscape feature in the area. The open space of Dwelling B will be screened off from Fairlawn Avenue by the proposed front fence which is inconsistent with the character of gardens in the vicinity.
- (SEPP 53, clause 32(a)(i), DCP 38, clause 5.5.1).
4. Open space -The private open space for Dwelling A and Dwelling B is inappropriately located at the front of each dwelling. This results in the need for walls at the street alignment and the consequent unsatisfactory impact on the streetscapes of The Chase Road and Fairlawn Avenue. There is inadequate private open space at the rear of the dwellings.
- (Dual Occupancy Code clause 5.1.5)
- 5. Built upon Area/Soft Landscaping Area - Under Council's Dual Occupancy Code, the maximum built upon area should be 45% and the minimum soft landscaping area should be 55%. The proposed development will have a built upon area of 48% and a soft landscape area of 52%. As a consequence, there is insufficient allowance for screen planting between dwellings and the impact of impervious surfaces is not sufficiently reduced.
- (Dua1 Occupancy Code, clause 4.9.3 and clause 5.1.1).
6. Objectors - The issues raised by the objectors.
7. Conditions -The Respondent submits that issues 1-4 cannot be resolved by conditions of consent in the circumstances of the case.
6 Attending the on-site hearing on 27 June 2005, for the council were:
- Mr P Marincowitz, solicitor of Phillips Fox
- Mr S Cox of Kur-ring-gai Council
- Mr J H Richardson of 60 Fairlawn Avenue
- Ms J Bourke of 73 The Chase Road
- Ms R Cherry, and Ms M Cherry of 66 Fairlawn Avenue
- Mr D Bodley and Ms B Bodley of 70 The Chase Road and
- Ms J Smith of 65 Fairlawn Avenue.
7 Attending for the applicant were:
- Mr B Hones, solicitor of Hones Lawyers and
- Mr I Glendinning, consultant town planner.
8 The parties had agreed to the appointment of Ms D Laidlaw, town planner as an expert to the Court and she also attended and provided a report.
9 Amended plans have been prepared in accordance with Ms Laidlaw’s recommendations. The respondent did not object to the plans.
10 Mr Richardson drew attention to inaccuracies in the shadow diagrams that would affect Mrs Jaca, a 91 year old resident of No. 62 Fairlawn Avenue. Ms Laidlaw agreed there were errors on the midwinter noon shadows and drew the corrected diagram during the hearing. She concluded that Mrs Jaca’s northern and eastern windows would be shadowed by building B of the proposal at 9 am. But the shadow would be off the windows before the noon and there would still be more than 4 hours sun to the north windows in mid winter and 3 hours to the western living room windows in mid winter.
11 As a result, there would be compliance with the council’s Dual Occupancy Code and with SEPP 53 which was the instrument under which the matter should be dealt with, and there would also be compliance with the AMCORD guidelines on solar access.
12 Mr Glendinning noted that tall trees existing on the common boundary of the site and Mrs Jaca’s are to be removed, thus providing sunshine that she did not get now.
13 The neighbours and the council were reasonably happy with the amended plans in regard to the relocation of the carport to building A on The Chase Road frontage. It was the reason for the deletion of issue 1 during the course of the hearing. The carport had been switched from its original position on the south side on the property to the opposite northern side of the allotment and recessed into the shape of the house, so that it was mostly behind the established building line with No. 73 The Chase Road.
14 Ms Bourke was concerned about overlooking from the deck proposed on top of the carport. The applicant agreed to a privacy screen to prevent overlooking the section of Ms Bourke’s front yard that is used for recreation and entertainment.
15 In regard to issue 2 and to some extent issue 3, the applicant tendered a revised site plan that would relocate house B on the Fairlawn Avenue frontage with a 4.5 m setback to the carport.
16 Ms Laidlaw was satisfied this gave a better streetscape. The adjoining No. 66 Fairlawn Avenue had a small setback to its garage, and two houses across the street had recently approved and built double carports in the front setback.
17 Travelling south on Fairlawn Avenue there was a transition from this streetscape to bigger front setbacks. The particular setting of the proposal appeared to be caused by Fairlawn Avenue and The Chase Road converging at an acute angle. The last few lots at this point of intersection ran through to both streets and gave rise to the smaller lots necessitating street front carports. I was satisfied that the 4.5 m setback was more appropriate than 3 m to fit into this streetscape, and to be at the transition point from the smaller lots to the bigger front setbacks.
18 The respondent was content that whilst the front setback did not meet the usual 12 m requirement, the reduced setback was acceptable given the context for the locality. This resolved issues 2 and 3 with a further provision that the front fence to Fairlawn Avenue to be lower in height to give greater transparency along that frontage to be sympathetic to the front yards of the houses in the locality being visible from the street. This increased setback created a further concern to Mrs Bourke and the two Ms Cherry’s. House B, by being pushed back 1.5 m made windows in the upper floors of house B overlook them. Although the overlooking was only from bedroom windows, they were concerned with privacy. The applicant conceded to make the lower panes in those bedroom windows into fixed frosted glass to 1.5 m above the floor and to extend the windows up into the gables of the cathedral ceilings of the bedrooms to get more light and to provide ventilation.
19 That resolved issue 6 except for perhaps bulk of the roof of house B as seen from the rear yards of the Bourke’s and Cherry’s. In that regard I note the proposal is on the south side of those properties, and no overshadowing is created and a 2 storey house is permissible in the zoning. The ridge of the roof did reach 7 m. Seven metres to the ridge is less than the permitted, 8 m to the ceiling of the topmost floor and being rooms in the roof the bulk is much less than a full two storey house with a roof on top. Given the increased density permitted by State Environmental Planning Policy No. 53 and the other developments of houses on small lots or detached dual occupancies in the context of this locality, house B did not seem unreasonable in terms of bulk.
20 The council was concerned on issues 4 and 5 that giving house B a greater front setback only accentuated the non-complying landscaped area and building bulk problems by squeezing house A and B together. The applicant agreed to reduce the floor space of house B by deleting the storage room, inside the carport and relocating it to the south side of the house. This will reduce the built upon area to less than 48% and raise the landscape area above 52%. Also it enabled house A and house B to maintain acceptable separation in Ms Laidlaw’s opinion so that they were not too close to the street.
21 The respondent conceded that this eliminated issues 4 and 5.
22 In regard to the conditions the parties have discussed and agreed on draft rewording on a number of conditions in Exhibit 3 and revised conditions would be forwarded to the Court in due course.
23 In coming to the conclusion on this matter I am aware of the fact that the drawings also needed amendment. I am not prepared to finally determine the matter without updated drawings so that there can be little room for confusion in their interpretation for any future consent authority that might have to issue Construction Certificate.
24 Overall I conclude that since the issues have been resolved satisfactorily by concessions made by the applicant, that I can foreshadow consent to the proposal subject to the appropriate amended drawings and updated conditions being provided for my consideration. There being no other reasons sufficient for refusal, I publish these reasons and direct parties to file amended plans and updated conditions with the Court within one week from today’s date and orders will be dealt with in Chambers thereafter.
_______________________
K G Hoffman
Commissioner of the Court
Rjs/ljr
In the Land and No. 10238 of 2005 Lisa Cribb Applicant Ku-ring-gai Council Respondent Order | The Court orders that: 1. The appeal is upheld. 2. Development consent is granted to conversion of an existing house and construction of a second 2-storey house to form a detached dual occupancy without subdivision at No. 71 The Chase Road, Turramurra as shown on drawings Job No. 2873/03 sheets 1, 2 and 3 of 4 all updated to 27 June 2005 by Lindsay Little and Associates and landscape plan C04 Issue B updated to 27 June 2005 all as further amended by and built in accordance with the conditions in Annexure A hereto. 3. The exhibits are returned to the parties except Exhibits 1, 2, 3 and E.Ordered: 30 June 2005 By the Court Susan Dixon |
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