Knight v Ku-ring-gai Council

[2007] NSWLEC 852

Land and Environment Court

of New South Wales

CITATION:

Knight v Ku-ring-gai Council [2007] NSWLEC 852

PARTIES:

APPLICANT
Peter Knight

RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):

10813 of 2007 and 10815 of 2007

CORAM:

Hussey C

KEY ISSUES:

Dual Occupancy - Subdivision :- Proximity to creek, flooding, riparian zone, setbacks, access via Right of Way.

LEGISLATION CITED:

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

DATES OF HEARING:

23/10/2007 and 21/12/2007

EX TEMPORE JUDGMENT DATE:

21 December 2007

LEGAL REPRESENTATIVES:

APPLICANT
Ms Marshall-McClelland, agent

RESPONDENT
Ms L. Finn, solicitor
of Home Wilkinson Lowry Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

21 December 2007

10813 of 2007 Peter Knight v Ku-ring-gai Council
10815 of 2007

JUDGMENT

This decision was given extemporaneously. It has been revised and edited prior to publication.

1 These proceedings involve the following two appeals that were heard concurrently, relative to a dual occupancy development application at 93 Eastern Road, Turramurra:

i) Appeal No 10813/2007; An appeal against Councils’ refusal of a 2-lot residential subdivision arising from the dual occupancy development and proposing the creation of:
• Lot 1; fronting Eastern Road and having an area of approximately 597 sq m, and
• Lot 2; fronting the ROW and having an area of approximately 931 sq m.
ii) Appeal No 108515/2007; An appeal against a detached dual occupancy application, involving the demolition of the existing dwelling on the site and construction of new 2-storey dwellings on each of the new lots.

2 The site is located on the eastern side of Eastern Road and falls away from the road (RL 152.91) towards the creek at north-eastern corner of the site (RL 150.84). There is a 2-storey redbrick dwelling currently located on the site with vehicular access off the ROW along the southern boundary of the property. This ROW also provides access to Nos. 91, 91A, 91B Eastern Road.

3 The site is of irregular shape and described as Lot 1 in DP 617550 and it has a total area of approximately 1528 sq m.

4 A number of issues were of issues identified as follows:

• Drainage: inadequate setback from the creek and floor heights for designated flood events, inadequate OSD system,
• Riparian zone;
• Landscaping; undesirable impacts on existing scenic quality,
• Streetscape impact; inadequate street setbacks.
• Public interest matters raised by objectors.

5 Ku-ring-gai Planning Scheme Ordinance (KPSO); under which the site is zoned 2(C) and the development is permissible with consent.

SEPP 53
DCP 31 – Access
DCP 43 – Car Parking
DCP 47 – Water Management
DCP 56 – Notification Policy
Dual Occupancy Code
Riparian Policy.

The Evidence.

6 The appeal commenced by way of an OSH. This included a view of the irregular shape of the site and its relationship to neighbouring properties, including its reliance on a ROW for access to both the new dwellings.

7 Concerns were expressed on behalf of the council that a more acceptable development would be achieved by shifting the building footprint to achieve better setback from the creek and to retain existing mature vegetation. This would then allow appropriate replanting of the riparian zone.

8 The neighbours also expressed concerns about likely disamenity during the construction of the development and concerns about heavy volumes of water flows along the creek causing flooding in the past. Also, that the separate accesses to the new dual occupancy dwellings, resulted in excessive removal of mature vegetation along the ROW. As an alternative, they suggested access to the front dwelling be obtained directly from Eastern Road.

9 Following discussions between the parties, the applicant agreed to undertake some amendments. These amendments have now been completed and include a minor relocation of the building footprint for Dwelling 1 away from the creek and raising the floor levels by approximately 115mm. Whilst, this relocation is less than discussed on-site, the applicant advises that further relocation is not practical due to the need for reasonable separation between the two new dwellings to allow placement of the OSD tank and maintain reasonable solar access to Dwelling 2.

10 With regard to the access to both the new dwellings from the ROW, the separation between the two crossings has been reduced, resulting in less impact on the existing boundary vegetation. The applicant has also provided at Construction Management Plan (CMP) detailing arrangements to minimise adverse amenity impacts for the neighbouring properties who share the ROW.

11 Having reviewed these amendments, the parties agreed to consent orders. These consent orders were notified to the objectors who now accept that the imposition of conditions requiring compliance with the CMP reasonably addresses their concerns in this regard. However, they prefer that the 2 driveways over the ROW be reduced somewhat to further retain existing vegetation, particularly a mature camellia near the pedestrian footpath.

Conclusion.

12 Having considered the evidence and undertaken a view, I now satisfied that the amended developments merits consent by way of the consent orders.

13 The Court has been informed that the setbacks to the creek are satisfactory in terms of flood impacts and opportunities to rehabilitate the riparian zone. Accordingly conditions of consent can cover these concerns.

14 I also accept that compliance with the CMP should effectively reduce disamenity to the neighbouring property owners. With respect to the location and width of the separate access driveways to the new dwellings, I accept that it is realistic to provide separate crossings to each double garage to avoid future conflict and disruption associated with shared use in the subject context. Furthermore, I consider a widened, combined driveway would be “commercial-like” and out of character with this garden setting. However, it does appear reasonable that the additional paved area for the proposed footpath be reduced so as to save the mature camellia and this can be included in the conditions of consent.

15 In summary then, I am satisfied that the amendments undertaken to the application I am satisfied that the aforementioned amendments reasonably address the matters raised by the objectors and in the absence of any other challenges to the proposal, I consider it reasonable to grant the consent orders.

Court Orders

16 By consent the Court orders

Appeal No 10813 of 2007 ;

1 The appeal be upheld.
2 Consent be granted to DA 0280/07 for the torrens title subdivision of 93 Eastern Road, Turramurra, New South Wales subject to conditions in Annexure “A”.

Appeal No 10815 of 2007;

1 The appeal be upheld.
2 Consent be granted to DA 0279/07 for the demolition of an existing dwelling and construction of a detached dual occupancy at 93 Eastern Road, Turramurra, New South Wales subject to conditions in Annexure ‘A”
3 The exhibits be returned.

The Court notes the parties agreement to pay their own costs.

___________________

R. Hussey
Commissioner of the Court
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