Fazal v Ku-ring-gai Council

[2005] NSWLEC 138

Land and Environment Court

of New South Wales

CITATION:

Fazal v Ku-ring-gai Council [2005] NSWLEC 138

PARTIES:

APPLICANT
Edward Fazal

RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):

11566 of 2004

CORAM:

Hussey C

KEY ISSUES:

Development Application :-

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

24/03/2005

EX TEMPORE JUDGMENT DATE:

03/24/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr S Kondilos, solilcitor
SOLICITORS
Maddocks

RESPONDENT
Mr B Tobin, solicitor
SOLICITORS
Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

24 March 2005

11566 of 2004 Edward Fazal v Ku-ring-gai Council

JUDGMENT

1 This appeal arises from council’s refusal of a development application for a two lot subdivision at 27 Banks Avenue, Turramurra. The affect of the subdivision is to excise the existing tennis court to create Lot 1 942.1 sq m and Lot 2 containing the existing dwelling with an area of 1,027 sq m.

2 For the appeal the council identified two principle issues and they concern the reduced amenity of open space for Lot 2 and also the impact on the character of the area and reasonable setbacks for neighbouring properties in respect of a future dwelling on Lot 1.

3 The parties have agreed to the appointment of Ms K Gordon as a Court Appointed Expert for planning and she has undertaken a detailed assessment of the proposal, resulting in her conclusion that it merits conditional consent.

4 The principle issue of the amenity for Lot 2 concerns council’s preference for conditions that require removal of the existing pool off the family room, so as to allow adequate private open space with solar access. However, this concern has been addressed in detail by Ms Gordon in terms of the shadow diagram impacts. She has calculated the various areas that receive the solar access in the pool courtyard as follows:

3.9 Accordingly, the pool courtyard would receive solar access to approximately half its area for 3 hours in midwinter and to over a quarter of its area for over 5 hours. It is noted that unless the pool was heated the pool itself would be unlikely to be used in midwinter. The usable outdoor seating area to the south of the pool is in full sun for over 3 hours in midwinter and receive sun to at least half its area for over 4½ hours. The area is sheltered from winds by the pavilion style of the dwelling and accordingly would be a very usable area in midwinter for passive outdoor recreation. As such the pool area satisfies the requirement for one north facing open space that receives a suitable level of solar access and satisfies solar access requirements of cl 5.2.11.

3.10 The pool courtyard is located such that it is private and it provides and a visual separation for the bulk of the dwelling (albeit the bulk is not great) as viewed from the portion of the open space immediately to the rear of the dwelling on No. 366 Bobbin Head Road. The paved areas to the south of the pool would heat up in winter given its exposure to solar access and shelter from the wind. This, together with the excellent cross ventilation afforded to the dwelling due to the pavillion design and location of the open space result in a suitable design with regard to temperature, shading and ecologically sustainability.

5 Apart from this, this house also has the benefit of an alternative outdoor area, which could be classified as the BBQ courtyard. Ms Gordon has also calculated various sections that receive solar access and consider that there is reasonable flexibility in this area. She concludes “that the two main areas of open space for the dwelling, together with the landscaped areas to the sides, front and rear of the dwelling that will be contained within Lot 2, result in a dwelling in a landscaped setting that is attractive and contributes to the character of the area.”

6 Furthermore, Ms Gordon says that the proposed Lot 1 is of sufficient size and dimension to also provide for the erection of a dwelling in a landscaped setting that would be attractive and would contribute to the character of the area. Also that the existing dwelling on the proposed Lot 2 provides suitable areas for private open space consistent with the requirements of cll 5.2.11 and 5.3.8 of DCP 48 and that a dwelling could be designed for the proposed Lot 1 can also satisfy these requirements. The satisfaction of these requirements are the basis for her opinion that it should be granted conditional consent.

7 I accept Ms Gordon’s conclusion on these outstanding issues. I think that this house has a high level of flexibility in its design so as to provide a reasonable level of amenity for the various private outdoor areas and the objectives of the DCP requirements are reasonably satisfied. That flexibility includes the opportunity for the occupiers or maybe future occupiers of the dwelling, to fairly easily change the swimming pool if they require a different type of outdoor amenity. Accordingly, I consider that the imposition of the condition to remove the swimming pool at this stage is unreasonable. I note also that there are no objections to this proposal and therefore I accept Ms Gordon’s conclusion that this application should be granted conditional consent and accordingly the Court Orders are:

1. The appeal is upheld.

2. Development consent is granted to DA 200/04 for a 2-lot subdivision at 27 Banks Avenue, Turramurra, subject to the conditions in Annexure A.

3. The exhibits may be returned except Exhibits A, C, D, 2 and 3.

__________________
R Hussey
Commissioner of the Court
rjs/ljr