Georges Construction v Ku-ring-gai Council

[2008] NSWLEC 1409

Land and Environment Court

of New South Wales

CITATION:	Georges Construction v Ku-ring-gai Council [2008] NSWLEC 1409
PARTIES:	Applicant: Georges Construction Respondent: Ku-ring-gai Council
FILE NUMBER(S):	10443 of 2008
CORAM:	Roseth SC
KEY ISSUES:	Development Application :-
DATES OF HEARING:	22 July 2008, 14 August 2008, 25 September 2008 and 16 October 2008
DATE OF JUDGMENT:	21 October 2008
LEGAL REPRESENTATIVES:	Applicant: Mr G Green, solicitor of Pikes Lawyers Respondent: Mr T Marsh, solicitor of HWL Ebsworth Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

21 October 2008

10443 of 2008 Georges Construction v Ku-ring-gai Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal by Ku-ring-gai Council (the council) of a development application for two five-storey buildings containing 34 apartments on lots 2, 3 and 4 DP 379719, known as 2 and 2a Yarabah Avenue and 3 Cecil Street, Gordon.

2 The matter was determined pursuant to s34 of the Land and Environment Court Act 1979. The parties held conciliation conferences on 22 July and 25 September 2008, at which they reached agreement on all matters except the concerns of the objectors. This is not to say that the council considered that the objectors concerns were a reason for refusing the application; nor that it brought expert evidence in support of those concerns. The council’s position was that it was satisfied with the proposal; however, it wanted the Court to be responsible for a decision, which was likely to be unsatisfactory to the objectors. In effect, the parties agreed to the Commissioner disposing of the matter pursuant to s34(4)(b), but without there being a dispute between them.

3 The Court heard the evidence of six objectors. Mr R Loxton spoke on behalf of Mrs Lavalle of 4 Yarabah Avenue. He said that the design was alien to the area, the information inadequate and the site analysis stopped at the site boundaries. Ms P Stephens, who lives at 5 Cecil Street, said that she objected to the bulk and scale. She was also concerned about the increased traffic affecting children’s safety. Mr T and Ms C Coughlan, who live at unit 4, 720 Pacific Highway, said that they objected to the removal of trees on the site. They considered the proposal too big and poorly designed. Mr T Packer, who lives at 9 Yarabah Avenue, said that the proposal should be only four-storeys high. Ms S Rekrut, who lives at unit 5, 718 Pacific Highway, said that the setbacks were inadequate and the architectural style should be more classical. Finally, Mr R Watkins, who lives at unit 3, 720 Pacific Highway, said that his living room windows, which face west, would lose their sunlight and outlook.

4 On 22 July 2008 I inspected the apartments of most of the above objectors, as well as some of those who did not give evidence at the October hearing. The main aspect of the apartments is towards the west, where they have a lovely view over the single houses that now occupy the subject site. The apartments, which have been in existence for about twenty years, are mainly in two-storey buildings. The subject site has recently been re-zoned to permit five-storey buildings at a Floor Space Ratio (FSR) of 1.3:1. As long as the proposal approaches anywhere near what is allowed by the planning controls, it has the potential for a devastating impact on the objectors’ apartments.

5 I note from the record of the negotiations between the applicant and the council that there has been an attempt to reduce the extent of the impact on the objectors’ apartments. The proposal has a FSR of about 10% less than permissible, the setback is greater than required and there is a gap between the two buildings to allow views between. The apartments to the east will receive at least 3 hours of sunlight at mid-winter. The loss of sunlight will be after 3pm, which means that the view of sunsets will be lost. To sum up: the negotiation between the parties has resulted in reducing what could have been a devastating impact to one that is best described as severe.

6 Other concerns of the objectors, such as traffic impact and the quality of architectural design do not support refusal of the application. There was no expert evidence on traffic impact. The council’s engineer raised no objection to it. In respect of the proposal’s aesthetics, it is only in cases of extreme ugliness that the Court would take on the role of arbiter on such a subjective matter.

7 Given the zoning of the subject land (a circumstance that the Court has no power to vary), the proposal’s impact has been reduced as much as may be reasonably required. I do not think that it would be reasonable to require the applicant to cut off the fifth storey in a zone that permits five-storey buildings. Moreover, a four-storey development would still have severe impacts on the apartments to the east.

8 For the above reasons the appeal is upheld.

Orders

1. The appeal is upheld.

2. Development application for two five-storey buildings containing 34 apartments on lots 2, 3 and 4 DP 379719, known as 2 and 2a Yarabah Avenue and 3 Cecil Street, Gordon is determined by the grant of consent subject to the conditions in Annexure A.

3. The exhibits are returned except Exhibit A.

________________
Dr John Roseth
Senior Commissioner