De Stoop v Ku-ring-gai Council - [2010] NSWLEC 1019

Land and Environment Court

of New South Wales

CITATION: De Stoop v Ku-ring-gai Council [2010] NSWLEC 1019
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT
Lindy De Stoop
RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S): 10352 of 2008

CORAM: Murrell C

KEY ISSUES: DEVELOPMENT APPLICATION :- Seniors Living Development; impact on heritage item; height and bulk; impact on adjoining properties; overshadowing and privacy; character of areas; SEPP1; objections; impact on residential amenity of adjoining properties.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy 1
Seniors Living SEPP No. 65

CASES CITED: Hooker Corporation Pty Ltd v Hornsby Shire Council, unreported, LEC No 10506 of 1982, 27 July 1983
Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46
Wehbe v Pittwater Council [2007] NSWLEC 827
Pafburn v North Sydney Council [2005] NSWLEC 444

DATES OF HEARING: 11, 12, 14 August 2009, 29 September 2009, 8 and 12 October 2009.

DATE OF JUDGMENT:
27 April 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr G Green (solicitor)
SOLICITOR
Pikes Lawyers
RESPONDENT
Mr A Pickles (barrister)
SOLICITOR
HWL Ebsworth

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

27 April 2010

10352 of 2008 Lindy De Stoop v Ku-ring-gai Council
JUDGMENT

1 The applicant in these proceedings is seeking to erect a multi-level seniors living development comprising 35 dwelling units on the site known as 1574 to 1578 Pacific Highway, Wahroonga. The proposal includes the demolition of an existing two-storey dwelling on a battle axe allotment at the rear of the two-storey heritage listed dwelling known as ‘Rosemorran’. The heritage item is to be retained and adapted as part of the proposal to provide communal facilities on the ground floor and two units on the first floor. The proposal provides for basement parking for 46 vehicles and the building is 2 to 5 storeys.

Site and environs

2 The subject site is located on the western side of the Pacific Highway between Munderah Street to the north and Gilda Avenue to the south. The site comprises two allotments being Lot 1 DP 315957 and Lot A DP 334713, respectively known as 1574-1576 and 1578 Pacific Highway Wahroonga.

3 The frontage to the Pacific highway is some 42 metres with the rear boundary of 40 metres and a northern side boundary of 124 metres and southern boundary of about 140 metres. This yields the site area of 5112 square metres including the right of carriageway with an area of approximately 380 square metres. The land falls away from the Pacific highway to the rear boundary with a fall of about 11 metres.

4 The subject sites are within a well vegetated residential area. To the north is the recently constructed Meriton residential apartment development, known as ‘Lexington”, comprising six buildings varying in height from three to five storeys containing 138 units. The southern boundary of the subject site forms the rear boundary of mostly single storey dwelling houses with…

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.

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Details

Case: [2010] NSWLEC 1019
Decision Date: 27 April 2010

CaseChat Overview and Summary

Lindy De Stoop, the applicant, sought to develop a seniors living facility on the site known as 1574 to 1578 Pacific Highway, Wahroonga. The proposed development included the demolition of an existing two-storey dwelling on a battle axe allotment and the adaptation of a heritage listed dwelling. The primary legal issues in this case involved the compliance of the proposal with the State Environmental Planning Policy (SEPP) 2004, the impact on the heritage item, and the effects on adjoining properties. The court also had to determine whether objections submitted under SEPP 1 to vary development standards should be allowed.

The court found that the objections to vary the standards set out in SEPP 1 were well founded. The court accepted that strict compliance with the height, two-storey, and rear 25% single storey standards was unreasonable and unnecessary in the circumstances of the case. The court held that the proposal, which included modifications such as increasing setbacks and deleting certain balconies, would be compatible with the surrounding residential area and not create adverse impacts.

Regarding the heritage item, the court was satisfied that the proposed development would not significantly impact the heritage significance of the dwelling known as ‘Rosemorran’ and its setting. The adaptive reuse of the residence into a seniors living development was deemed appropriate, and the alterations necessary for compliance with building codes would not significantly affect the heritage value of the site.

The court assessed the urban design principles under SEPP 65 and concluded that the proposal, while long and narrow, responded appropriately to the site's constraints and opportunities. The landscaping plan was found satisfactory, with measures in place to protect and supplement the existing trees on the site.

In evaluating the impact on adjoining properties, the court determined that the proposal would not create unreasonable impacts in terms of overshadowing, overlooking, or the bulk of the building. The separation distances and the proposed landscaping were considered sufficient to mitigate any adverse effects on the privacy and amenity of neighbouring properties.

Based on the evidence and the assessments, the court approved the development application subject to certain conditions, including a deferred commencement condition to delete a specific unit and other agreed conditions. The court upheld the appeal and allowed the objections submitted under SEPP 1, finding that the amended plans addressed the concerns raised by the objections and the statutory planning framework.

Orders