Exodus (Pymble) Pty Ltd v Ku-ring-gai Council

[2004] NSWLEC 444

Land and Environment Court

of New South Wales

CITATION:

Exodus (Pymble) Pty Ltd -v- Ku-ring-gai Council [2004] NSWLEC 444

PARTIES:

APPLICANT
Exodus (Pymble Pty Ltd

RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):

10283 of 2004

CORAM:

Bly C

KEY ISSUES:

Development Application :- demolition of existing house - dual occupancy - basement car parking - streetscape - bulk and scale - setbacks

LEGISLATION CITED:

Ku-ring-gai Planning Scheme Ordinance
State Environmental Planning Policy No. 53, Metropolitan Residential Development ("SEPP 53")

CASES CITED:

DATES OF HEARING:

17-18/06/04 and 23/06/04

EX TEMPORE
JUDGMENT DATE :

06/23/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Hones, solicitor
SOLICITORS
Hones Lawyers

RESPONDENT
Mr P Rigg, solicitor
SOLICITORS
Deacons

JUDGMENT:

- 4 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

C Bly

23 June 2004

10283 of 2004 Exodus (Pymble) Pty Ltd –v- Ku-ring-gai Council

JUDGMENT

1 This appeal relates to Development Application No. 1608/3 which proposes the demolition of the existing single storey dwelling house and the construction of an attached three storey dual occupancy development including basement car parking at 18 Knowlman Avenue, Pymble.

2 The site comprises Lot 23 in DP 11748. It is essentially rectangular in shape and has an area of 1,169 sq m. There is a water course located towards the eastern side of the site entering the site across its northern boundary and exiting the site at its south-eastern corner and extending beneath Knowlman Avenue.

3 The locality surrounding the site mainly comprises a mixture of one and two storey detached dwelling houses of brick and tile construction erected in the mid to late twentieth century.

4 The proposed dual occupancy development is prohibited under the Ku-Ring-Gai Planning Scheme Ordinance (“the planning scheme”) but is permissible with development consent under State Environmental Planning Policy No. 53, Metropolitan Residential Development (“SEPP 53”).

5 Following its lodgement on 15 December 2003 the application was notified between 17 December and 8 January 2004 and five letters of objection were received. Matters of concern raised in those objections mainly include: the proposed building would have an excessive height, bulk and scale; dual occupancy type developments are inappropriate in the street; and the proposed building would be inappropriate in the streetscape.

6 The application was refused by the council on 3 May 2004 for seven reasons which relate to: the requirements of the Department of Infrastructure, Planning and Natural Resources (“the department”); adverse impacts on the water course; adverse impacts on the streetscape resulting from the building’s excessive bulk and scale; impacts resulting from inadequate side setbacks; and non-compliance with the zone objectives for residential areas under the Planning Scheme.

7 On behalf of the respondent council, expert evidence was given by Miss K Gordon, a town planner and Dr D Martens, a civil and environmental engineer.

8 In addition whilst on site resident objector evidence was given by Mr G Reid of No. 16 Knowlman Avenue who complained that the height and bulk of the proposal was of concern being too close to his property. More generally he was concerned that a dual occupancy form of development would not be appropriate in this street and would thus be unacceptable. Mr M Northern of No. 19 Knowlman Avenue was also concerned at the height and bulk of the proposal and its box like shape and the size of the proposed driveway. He was also concerned that the finishes and colours of the development may in the future generate inconsistencies in the streetscape. Mr M Donaldson of No. 17 Knowlman Avenue expressed concerns similar to those expressed by Mr Northern.

9 On behalf of the applicant, expert evidence was provided by Mr I Glendinning, town planner, Dr S Ambrose, zoologist and ecological consultant, Mr D Ford, arborist, Mr M Taylor, engineer and Dr Perrens, hydraulic engineer.

10 Having considered all of the evidence including the joint experts’ reports and having viewed the site and its environs there were two important issues that arose for the determination of the Court:

1. Whether the design of the proposed building would be satisfactory in the streetscape particularly in terms of its bulk and scale relative to the bulk and scale of existing development in the immediate locality.
2. Whether the proposal including engineering works associated with the water course would prevent the provision of an appropriate riparian zone.

11 In relation to the streetscape issue and following changes to the proposal as now depicted in the amended plans together with the agreed conditions of consent there is now no disagreement between the two town planning experts. I have now considered the amended proposal as positioned on its own site and in the streetscape context, particularly taking into account the scale and design of existing buildings in the street, and I am satisfied that the proposal would be satisfactory.

12 Whilst I recognise the concerns of the neighbours I now accept that the bulk and scale of the amended proposal, taking into account the good design requirements of SEPP 53, would not be inconsistent with the design principle that dual occupancy development should contribute to an attractive residential environment with clear character and identity. The revised articulation and modulation of the amended building will also meet the objective of reducing building bulk and being responsive to the site’s landform and surrounding development.

13 In relation to the water course and the riparian zone I now note that the relevant experts who were able to deal with the engineering and the landscaping design that is now proposed have reached an agreement that the riparian issue is resolved. This has been achieved by the provision of an appropriate structure for the water course to accommodate flooding requirements and by the provision of an appropriate floristic structure of species diversity appropriate to this locality and this particular creek.

14 In the circumstances I am satisfied that the arrangement as proposed would be satisfactory and would meet the objectives expressed by the Department in its letter dated 18 June 2004 which is concerned with the protection of head-water streams and their health and their role in delivering:

ecosystem services to the catchment in providing habitat to support the complex ecological interactions which benefit water quality and provide a natural heritage for present and future communities of the area to enjoy.

15 Whilst I recognise that the proposal does not strictly respond to the Department’s general terms of approval I accept that those objectives will be broadly met, taking into account that this site is zoned for residential development and that the scheme which the Court now approves is a reasonable balance between urban development and protection of the water course.

16 The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 1608/03 for the demolition of an existing single storey dwelling house and the construction of an attached three-storey dual occupancy development including basement carparking at 18 Knowlman Avenue, Pymble, is determined by the granting of development consent subject to the conditions in Annexure A hereto.

3. Exhibits 11, 12, 13 and E are retained.

4. No order as to costs.

_______________________
T A Bly
Commissioner of the Court
mp