Kaplun v Ku-ring-gai C

[2005] NSWLEC 544

Land and Environment Court

of New South Wales

CITATION:

Kaplun v Ku-ring-gai C [2005] NSWLEC 544

PARTIES:

APPLICANT
Alice Eve Kaplun

RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):

10451 of 2005

CORAM:

Murrell C

KEY ISSUES:

Development Application :- Alterations and additions to dwelling - appeal against conditions to delete front carport - streetscape - fencing - character of area - setback - DCP provisions

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Ku-ring-gai Planning Scheme Ordinance

CASES CITED:

Zhang v Canterbury CC [2001] 115 LGERA 373

DATES OF HEARING:

14/07/2005 and 15/09/2005

EX TEMPORE JUDGMENT DATE:

09/15/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr S. Klinger, solicitor

RESPONDENT
Mr N Laird and Mr P. Rigg, solicitors
of Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

15 September 2005

10451 of 2005 Alice Eve Kaplun v Ku-ring-gai Council

JUDGMENT

1 This is an extempore judgment for an appeal under s 97 of the Environmental Planning & Assessment Act against Ku-ring-gai Council’s imposition of two conditions on a development consent for alterations and additions to an existing dwelling at the property known as No. 25 Highfield Road, Lindfield.

2 The two conditions that the applicant is appealing are in respect of a consent issued by the council on 28 April 2005 requiring the removal from the plans of a carport at the front of the dwelling. The two conditions are:

Condition 4:
“To ensure the desired future streetscape of Highfield Road is maintained the proposed double carport turning area/driveway … shall be deleted from the application.”
Condition 5:

“The proposed front fence shall be modified so as to delete the vehicular gate and associated brick piers … ”

3 The proceedings commenced as an on-site hearing and the Court had the opportunity then of an extensive walk of the area. For the record, the area can be described as one that has large allotments and large dwelling houses set in landscaped vegetated settings. Opposite the subject site on Highfield Road, there is a school, and at the rear of the property there is a laneway, in part an unmade laneway that also serves as the only access to a number of dwellings that do not have access to Highfield Road as the lots have been developed with dual occupancies. The site inspection also revealed that there are a number of properties that have access to Highfield Road and there are also variations in the setbacks of the dwellings and associated structures such as garages and carports. As such the building line in the area is variable. The subject dwelling is set back considerably from Highfield Road as is the adjoining property to the east of the subject site. The subject dwelling is one that presents as a period intact dwelling for the subject site representing a bygone era.

4 The Court on the first occasion when it met on-site requested further details with respect to levels and an assessment or investigation of other options or alternatives to allow for parking with access from Highfield Road. On that occasion the Court indicated that given the significant extensive setback of the dwelling that it was appropriate that there be access and garaging from Highfield Road.

5 The applicant met the Court’s requirements to explore options as the Court did express concern about the extensive turning area and hard-paved area that was shown on the plan, and also the relationship of the carport to the existing dwelling. The Court has now been provided with the additional information in terms of levels and in terms of two other options, that were considered on-site and from the engineers and from the relative levels that have now been provided to the Court, I am satisfied that those options cannot be pursued and are unworkable.

6 The applicant has also provided an amended plan in response to some of the Court’s concerns to set the carport back further such that there is a pathway between the dwelling and the new proposed carport but to maintain the integrity of the dwelling and access to the rear of the property and a reduction in the turning area. An amended landscape plan has also been provided to provide an indication of the setting of the dwelling and the carport.

7 The Court has noted that council has its standard condition imposed, at No. 6, about compliance with DCP No. 38. The condition No. 6 calls for 10 canopy trees to be provided on a site of this size where the soils derived from sandstone. The landscape plan that the applicant has now provided would also need to be amended to ensure a minimum of two native canopy trees are provided in the front area.

8 The council contends that the proposed carport should not be allowed. The council has no concerns about the dwelling house and the alterations, the additional floor, the swimming pool et cetera that is proposed for this dwelling house. However, council still contends that the carparking for the subject dwelling should be provided via the rear laneway.

9 The Court has been taken to the planning regime and in terms of the planning regime it is important to note that the subject site was rezoned in 2004 from a residential single dwelling site to what is now know as 2C2 in the Ku-ring-gai Planning Scheme Ordinance. This is by way of amendment or LEP No. 200. The permissible uses within the subject zone include apartment conversions, attached dual occupancies, detached dual occupancies, dwelling houses, family flats and subdivision of land. The Court has also noted the other provisions contained within the LEP.

10 It was agreed this morning that sch 9 would not relate to the subject site, which is the Aims and Objectives for Residential Zones. This sch 9 has not been amended to include 2C2. It refers to the zones known as 2A, 2B, 2C, 2D, 2E, F, G and H.

11 The LEP provides for controls on dual occupancies and multi-unit housing on land to which this part applies, that is in cl 25E of the plan and it also has provisions in cl 25F for dual occupancies in the 2C zone and in cl 25G for apartment conversions in the 2C2 zone. It is noted the plan does not provide for a definition of ‘multi-unit housing’, nor does it provide for a definition of ‘family flats’. It does contain a definition of dual occupancies and a definition for flats. The plan itself also with the amendment No. 200 provides for re-zonings, in particular around the Pacific Highway, for sites to be zoned 2D and this is at a greater density than the 2C2 zone.

12 Nonetheless, the subject site has also been identified in council’s planning scheme as a site that is suitable for dual occupancy development on a plan that colours sites that are greater than 1200 sq m. The subject site is a large allotment approximately 1520 sq m and has a frontage to Highfield Road of 15.25 m. The history of the site is that there has been previously a dual occupancy development approved with parking provision and vehicle access from Highfield Road for one dwelling and vehicle access to the rear dwelling via the laneway. That is merely a circumstance of the case. The role of the Court is to assess the individual merits of this development application in terms of the current planning regime.

13 The council’s Development Control Plan No. 38 complements the statutory requirements in Ku-ring-gai’s deemed environmental planning instrument known as the KPSO 1971, by providing detailed provisions to be considered when assessing applications for single lot detached residential development and it should be read in conjunction with other DCPs. I have considered the DCP in my assessment of this application as I consider it is a matter that I must take into consideration despite the fact that the DCP itself refers to the 1971 LEP. Nonetheless I will consider it with the amendment as of 2004 that rezones this site to 2C2. There are a number of principles or criteria that are set out within the DCP relating to setbacks. The proposed carport does not infringe or encroach the setback. The control calls for a 12 m setback and the subject setback for the carport is 14.3 m with the amended plan. There are a number of design guidelines as well with respect to the construction of car accommodation and the design of carports and garages as follows: “The design of carports and garage structures should be sympathetic to existing development on the site and consider adjacent buildings. Carports and garage structures should not dominate the site or the streetscape.”

14 The DCP provides a number of ways to achieve the above:

“through the use of compatible materials, colours, scale and roof pitch and it also gives a number of design requirements that include locating parking at the rear of the site where rear access is available, integrating structures within the development, defining structures, with different surface and wall treatments and soft landscaping, particularly screen plantings of shrubs, limiting garages to single or double or aligning doors at right angles to the street. Only open sided carports will be considered in front of the building line where it is not possible to provide parking behind.”

15 As I said the proposal is behind the building line and it is proposed as a carport. The location of carports and garages needs to consider existing trees and the structures on adjacent sites, streetscapes and the visual character and heritage issues. The carport has been sited such that the rather magnificent magnolia tree is proposed to be retained with the proposed development. The location of a carport or garage must have regard to, the location of trees, position of windows, established streetscape, the heritage significance and must not be located forward of the building line.

16 The control that the proposal does not comply with is to locate parking at the rear of the site where rear access is available. I must give genuine proper consideration to the requirements of the Development Control Plan however consistent with the Zhang v Canterbury Court of Appeal judgment of Spigelman CJ it is a matter that I still must use discretion in decision making.

17 In the circumstances of this case, having regard to the streetscape, having regard to the design of the carport, having regard to the landscaping that can still be achieved with the generous setback I am satisfied that the proposed carport is not one that would be inconsistent with the streetscape, out of character or be such that it will impose unreasonably on the streetscape.

18 In the circumstances of this case I consider that approval of the carport as now proposed on the amended plan is appropriate. The design of the carport relates to the dwelling. Whilst it is not physically integrated that is not the test. The test is in terms of integration in terms of architectural design and I am satisfied that the carport will provide for a satisfactory built form to complement the subject dwelling. It also allows for the integrity of the dwelling house itself to be retained and it has regard in that respect to allow a setback with a path for the window to the front room to be maintained.

19 I am satisfied that the carport at the front of this dwelling will not be an aberration in terms of the zoning either. As part of my consideration of this application I must have regard to what the zoning provides for and that provides clues to the future character of the area. The site is zoned to allow family flats and clearly it is a site that was considered in terms of the overall strategy by the council as one that is more suitable for multi-unit development than other sites within the Ku-ring-gai area. Leaving that aside even if one considered it in terms of it remaining a single dwelling area I am satisfied that the carport at the front of this dwelling would not be an aberration. It is not inconsistent, out of character, incompatible or antipathetic to what one sees in the streetscape now and it would be an appropriate addition in terms of the streetscape together with the proposed landscaping.

20 By way of comment I will say that in terms of the amendment to the LEP 200, which introduces the 2C2 zone and the new residential flat zones within Ku-ring-gai it would appear that the provisions are not consistent or are incomplete.

21 Therefore the orders of the Court in this matter are:

1. The appeal for the property known as 25 Highfield Road Lindfield is upheld.
2. The development application submitted to Ku-ring-gai Council and as amended is approved subject to the conditions contained in Annexure ’A’. (Annexure ‘A’ will be Exhibit 9 with the deletion of Conditions 4 and 5 and an amendment to condition 6 to say that the landscape plan for the front of the property is to incorporate a minimum of two canopy trees.)
3. The exhibits may be returned with the exception of 9, C, D and H.

___________________

J S Murrell
Commissioner of the Court
Ljr/rjs