Henderson v Ku-ring-gai Council

[2004] NSWLEC 725

Land and Environment Court

of New South Wales

CITATION:

Henderson v Ku-ring-gai Council [2004] NSWLEC 725

PARTIES:

APPLICANT
Henderson

RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):

11420 & 11152 of 2004

CORAM:

Tuor C.

KEY ISSUES:

Development Application :- Dual Occupancy development
Development consent - amend conditions
height bulk and scale
impact on tree and residential amenity

LEGISLATION CITED:

State Environmental Planning Policy No 53
Ku-Ring-Gai Planning Scheme Ordinance

CASES CITED:

DATES OF HEARING:

9 & 17 December 2004

EX TEMPORE
JUDGMENT DATE :

12/17/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr G McKee

Solicitors
McKees

RESPONDENT
Mr C Drury

Solicitors
Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

17 December 2004

11420 of 2004 & 11152 of 2004 Henderson v Ku-ring-gai Council

JUDGMENT

1 COMMISIONER: On 19 December 2002, the Court granted approval to a development application (DA977/01) to subdivide 35 Bangalla Street, Warrawee, into three allotments (Appeal No. 0451 of 2002).

2 Appeal No. 11420 of 2004 is against the refusal by Ku-ring-gai Council (council) of a s96 application to modify the development consent (DA977/01) by the amendment of conditions relating to the construction exclusion zone around the Cedrus deodera tree (Himalayan Cedar).

3 Appeal No. 11152 of 2004 is against the refusal of an attached dual occupancy development at lot 2, 35 Bangalla Street, Warrawee, under State Environmental Planning Policy No 53 (SEPP 53). The dual occupancy is in the form of a granny flat within the proposed two storey dwelling.

4 The parties agreed that the appeals should be heard together.

5 35 Bangalla Street is listed as a heritage item under Ku-ring-gai Planning Scheme Ordinance (KPSO). Lot 1 contains the original house. Lot 2 (the site) is a battle axe with a frontage to Bangalla Street of 4.2m. The rear (north) boundary is 57.119m, the south boundary is 49.01m and the eastern boundary is 28.3m. The access handle has a length of 91.4m. The site has an area of 1822sqm (1660.8sqm excluding the access handle) and falls approximately 6m from east to west. It is vacant with a large Himalayan cedar in the north west corner. Lot 3, to the north of the site, is also vacant.

6 The east boundary adjoins a reserve owned by Knox Grammar School. The south boundary adjoins 35A Bangalla Street (Mr and Mrs Barraket) and 19 Warrawee Avenue (Mr and Mrs Farrell). The owners of both these properties provided evidence to the Court.

7 The appeal was held on site on 10 December 2004. Mr N Ingham, town planner, was the Court Appointed expert. Mr I English, for the council and Mr A Scales, for the applicant provided arboricultural evidence.

8 The key issues can be summarised as:

a Whether the bulk, height, location and footprint of the proposal will have an acceptable impact on the existing heritage building, the adjoining reserve and adjoining properties.

b Whether the proposal will have an adverse impact on the Cedrus deodera (Himalayan cedar) and whether sufficient canopy trees are provided.

9 In response to concerns raised by Mr Ingham, the proposal was amended in November and again on the day of the hearing. These amended plans were discussed with the residents and with Mr Ingham at the hearing and it was agreed that further minor amendments were required and that the hearing be adjourned for a week to enable the residents to make further submissions in addition to those expressed in their letters and on site if they so wished.

10 The matter was heard again on 17 December where Mr and Mrs Barraket and Mrs Farrell made further written submissions.

11 The amended plans largely satisfied the Barraket’s concerns. Mrs Farrell raised issues relating to the impact of the proposal on the heritage significance of the existing house due to its proximity, size and height. She was concerned that the proposal would be visible from her property, which is also a heritage item. She opposed the changes to the works exclusion zone around the Himalayan Cedar as the proposed house and driveway and any future development of the adjoining lot 3 may impact on the health of the tree.

12 Mr Ingham’s opinion was that the proposal was a large building on a large site and that this was consistent with the character of the area. He stated that with the exception of a minor non compliance of the dormer windows with the building envelope control, the proposal met the numerical requirements of KPSO and the DCP and the requirements of SEPP 53.

13 Mr Ingham also considered that the proposal was acceptable on merit considerations. In his opinion, the amendments reduced the bulk of the building and provided a satisfactory relationship with the heritage item. The proposed house is some 28m from the common boundary and further from the house, which Mr Ingham considered to provide sufficient separation between the two buildings. He noted that Mr Staas, heritage consultant, had provided expert evidence on the original subdivision application and was satisfied with the relationship of the proposed house to the heritage item in the current proposal.

14 Mr Ingham considered that the house would not adversely impact upon the adjoining houses. While the roof of the two storey section would be visible, the house was setback sufficiently and screened by landscaping. That part of the building that was closest to the houses was the single storey garage, which due to the slope of the land, would not be visible. The house was setback and screened from the reserve and in, Mr Ingham’s opinion, was acceptable and consistent with the bulk and scale of other houses, which bordered the reserve and in the area.

15 In relation to the Himalayan Cedar, Mr English and Mr Scales agreed that as a result of root mapping and proposed conditions the 10m works exclusion zone specified in Condition 41 of the development consent (DA977/01) for the subdivision could be reduced on lot 2 without endangering the health of the tree.

16 Mr English and Mr Scales agree on the location and type of canopy trees that could be provided on site and the landscaped plan was amended accordingly.

17 I am satisfied that these measures will retain the Himalayan Cedar, not adversely impact on the significance of the house and be consistent with the character of the area of large houses in landscaped settings. The subdivision of the land envisaged that a house would be developed on the site. While the proposal is for a dual occupancy development, this is in the form of a granny flat and the bulk and scale of the development is no different to that of other large houses in the area. The proposal satisfies and is consistent with the form of development envisaged by the planning controls.

18 The Parties disagreed on Condition 58 relating to a bank guarantee for the implementation and maintenance of landscaping. I am satisfied that the amendment to Condition 34 to require that the landscaping be maintained is sufficient to address the council’s concerns and that condition 58 can be deleted.

19 The only other matter in dispute between the parties was the proposed fence along the southern boundary. The applicant proposed that a section near the reserve be chain mesh fence to maintain views from the existing house to the reserve and the trees. Council considered this to be inappropriate, as it would result in three different fence types along the southern boundary adjoining the heritage item. I accept council’s opinion that the proposed paling fence and section of masonry wall adjoining the swimming pool is preferable along this boundary.

Orders

20 For the above reasons the orders of the Court are:

Appeal No. 11152 of 2004.

1. The appeal is upheld.

2. Development application for a dual occupancy development at lot 2, 35 Bangalla Street, Warrawee, s determined by the grant of development consent subject to the conditions at Annexure “A”.

3. The exhibits, except exhibits K and 8, may be returned.

Appeal No. 11420 of 2004.

1. The appeal is upheld.

2. The Section 96 application to amend development consent 977/01 to subdivide 35 Bangalla Street, Warrawee, into three allotments is modified as shown in Schedule “A”.

3. The exhibits may be returned.

__________________
Annelise Tuor
Commissioner of Court