Falcomata v Ku-ring-gai Council (No 1)

[2005] NSWLEC 458

Land and Environment Court

of New South Wales

CITATION:

Falcomata v Ku-ring-gai Council (No 1) [2005] NSWLEC 458

PARTIES:

APPLICANT
R Falcomata

RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):

10189 of 2005

CORAM:

Moore C

KEY ISSUES:

Development Application :-
Amenity
.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

3 August 2005

EX TEMPORE JUDGMENT DATE:

08/03/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr S Kondilios, solicitor
Maddocks

RESPONDENT
Mr P Marincowitz, solicitor
Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT

OF NEW SOUTH WALES

Moore C

3 August 2005

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

1 This appeal is one of a pair of appeals involving the two subdivided elements of a parcel of land known as 86 Livingstone Avenue, Pymble (the site). The portion of the site to which this appeal relates is known as a Lot 3, that is the furthest down hill of the two allotments, which are the subject of these two appeals.

2 The matters, which Ku-ring-gai Council (the council) put as warranting refusal were:

1. the potential impacts on a number of trees on the downward slope from Lot 3 to the adjacent property at 9 Nadine Place;
2. the bulk of the dwelling when addressed from 9 Nadine Place; and
3. as a lesser issue, which was dealt with by evidence on site from Mr Ingham, the court appointed town planning expert, related to the internal separation of the two dwellings.
3 For the reasons set out below, the appeal is to be upheld. In doing so, I note that I have upheld this appeal on the basis not only of my own views as to the merits of the appeal but the fact that, in light of the amendments made by the applicant with respect to the proposal on Lot 3 (as outlined below), the council did not press any objections as warranting refusal of the application.

4 As a consequence of what was viewed on site and the evidence, which I heard from the residents (particularly Mr Arndt, the owner of 9 Nadine Place) and the evidence of Mr English, both on site and in Court in his capacity as the Court appointed arborist, I put a number of propositions to the applicant as to whether amendments to the plans were capable of being effected to accommodate those concerns.

5 I put those propositions as I had reached a preliminary conclusion that the plans were capable of approval but not approval in their present form.

6 As a consequence of that preliminary conclusion, the applicant sought leave through its solicitor, Mr Kondilios, to amend the plans by withdrawing the walls of both storeys of the dwelling as they face 9 Nadine Place to effect a continuous line with the line of the family room walls proposed in the plans that are presently before me.

7 This has the effect of providing additional protection for the trees which were of concern to Mr English, he having given evidence that, provided appropriate and stringent conditions are imposed (which conditions are, in his expert opinion, capable of compliance by a prudent builder), there is a sufficiently high and almost certain probability of no or negligible impact on those trees so that a consent could be given confidently with respect to the impacts on them.

8 Similarly, the applicant has agreed, in effect, to flip the design of the first storey of the house that will have two immediate beneficial effects for the residents of 9 Nadine Place without having any negative impact on 90 Livingstone Avenue. On the evidence of Mr Ingham, whose evidence I accept and which I consider confirmed by my inspection of the site from 90 Livingstone Avenue there will be no negative impact on that property.

9 However, there will be considerable positive benefits for the residents of 9 Nadine Place both by moving a significant element of the upper storey bulk of the proposed dwelling further away from them and by improving the afternoon solar access to their rear private open space to some considerable extent.

10 As a consequence of these amendments, which were not opposed by the council, I have reached the conclusion that, with respect to the two dwellings on Lot 3, the appeal ought be upheld subject to the provision of revised conditions and amended plans. As a consequence of these amendments, which were not opposed by the council, I have reached the conclusion that, with respect to the two dwellings on Lot 3, the appeal ought be upheld subject to the provision of revised conditions and amended plans.

11 I therefore direct that:


1. the applicant is to file and serve revised plans to reflect the amended application by the close of business on 12 August;
2. the respondent is to file and serve revised conditions of consent on the applicant on 12 August;
3. the matter is set down for callover on 1 September;
4. if the parties are able to settle revised amended plans and revised conditions and file those with the Court pursuant to (1) and (2) (the conditions being filed electronically in conformity with the provisions of Practice Direction 2 of 2005), I will make orders in Chambers and will vacate the callover on 1 September; and
5. I grant the parties liberty to re-list the matter before me on 9.00am on two days notice if there are any outstanding matters.

Tim Moore
Commissioner of the Court