Leib v Ku-ring-gai Municipal Council

[2004] NSWLEC 677

Land and Environment Court

of New South Wales

CITATION:

Leib v Ku-ring-gai Municipal Council [2004] NSWLEC 677

PARTIES:

APPLICANT
Jonathan Leib

PARTIES
Ku-ring-gai Municipal Council

FILE NUMBER(S):

10877, 79, 80, 81 of 2004

CORAM:

Brown C

KEY ISSUES:

Development Application :- demolition exisitng dwelling - erection of 3 x 2 storey dwellings - design - impact on character of area - heritage

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No 53
Ku-ring-gai Planning Scheme Ordinance

CASES CITED:

DATES OF HEARING:

29/10/2004, 23/11/04

EX TEMPORE
JUDGMENT DATE :

11/23/2004

LEGAL REPRESENTATIVES:

APPLICANT
Ms M-L Taylor, solicitor
SOLICITORS
Norman Waterhouse

RESPONDENT
Ms J Smith, solicitor
SOLICITORS
Wilshire Webb

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

23 November 2004

10877, 79, 80, 81 of 2004 Jonathan Leib v Ku-ring-gai Municipal Council

JUDGMENT

1 This matter comes before the Court as an On-Site Hearing heard on 29 October 2004. The proceedings involve four separate, but related appeals for the demolition of an existing dwelling and the erection of 3 x 2 storey dwellings and the Torrens Title subdivision of the dwellings at 82 Warrangi Street, Turramurra.

2 The four development applications relate to:

1. DA 610/04 - the demolition of the existing dwelling and the erection of dwellings 1 and 2.

2. DA 611/04 – a two lot Torrens Title subdivision of dwellings 1 and 2.

3. DA 613/04- the erection of dwelling 3 as a detached dual occupancy to dwelling 2.

4. DA 612/04 – a two lot Torrens Title subdivision of dwellings 2 and 3.

3 The proposed development is to be considered under the provisions of State Environmental Planning Policy 53 (SEPP 53) and the Ku-ring-gai Planning Scheme Ordinance (the KPSO). The four applications are to be considered sequentially to comply with the provisions of SEPP 53.

4 The council filed a Statement of Issues containing six issues. These relate to:

1. streetscape and visual impacts,
2. heritage impact,
3. building setbacks,
4. building form,
5. private open space including solar access, and
6. loss of trees.

5 The parties agreed to the appointment of Mr Geoff Goodyer as the Court appointed town planning expert. He prepared a report that concluded that the proposal was acceptable following the submission of further plans that addressed some of his previous concerns relating to private open space and loss of trees.

6 A number of residents provided evidence to the Court at the On-Site Hearing and the Court also had the benefit of the letters of objection written to the council.

7 In my understanding the major issue dealt with the appearance of the development and the impact on the character of the area.

8 SEPP 53 provides few numerical standards beyond the floor space ratio, allotment size and car parking and there was no dispute that the proposal satisfied these requirements. The qualitative requirements provide for developments to be of “good design” (cl. 3(1)(d)) “contribute to an attractive residential environment with clear character and identity” (cl. 32(a)(i)), “provide building setbacks that progressively increase with wall height…” (cl. 32(h)(a)) and “adopt building heights at the street frontage that are compatible in scales with adjacent development” (cl. 32(h)(c)).

9 Mr Goodyer states that the proposal has a bulk, scale and impact on the streetscape that is acceptable under the relevant planning controls. With the benefit of the site view and the plans I agree with this conclusion and find no conflict with any requirements in SEPP 53.

10 A number of residents raised further issues that I will briefly address.

11 The adjoining neighbour in Warrangi Street expressed a concern that there would be overlooking into his bedrooms however, any viewing would be at a relatively oblique angle and where the separation distance in excess of 9 m I do not see overlooking to be an issue in this situation.

12 An adjoining neighbour in Warrangi Street expressed concern over the potential conflicts with the proposed dwelling driveways and her existing driveways. With the limited traffic movements, any conflict is likely to be remote and easily addressed through care in leaving or entering the premises.

13 The heritage issue was addressed by Mr Lonergan for the applicant and Mr Dignam from the council through a joint report. Mr Lonergan provided a further report based on Mr Dignam’s concerns over the impact on the adjoining the heritage item at 90 Bobbin Head Road.

14 In terms of the impact on the adjoining heritage item, cl 61E of the KPSO provides requirements for the development in the vicinity of heritage items. Clause 32(a)(ii) of SEPP 53 also provides that the proposal should “complement and sensitivity harmonise with any …relevant heritage item”.

15 Mr Lonergan’s evidence was that the proposal had no impact on the heritage item, again with the benefit of the site view and Mr Lonergan’s evidence I accept his conclusions. The separation and form of the proposed development comfortably protects its significance. Consequently, I accept that there is no conflict with any requirements in SEPP 53 or the KPSO.

16 In my opinion there is no basis for the refusal of the development application and consequently the appeal is upheld.

17 As further discussion was required by the parties on the conditions of approval, final orders could not be issued until these discussions had taken place. Leave was granted to restore the matter if agreement could not be reached on the conditions.

18 As it transpired, agreement could not be reached on the conditions and a Mention took place on 23 November 2004 where the outstanding issues were addressed by the Court and final orders issued for each appeal.

___________________________
G T Brown
Commissioner of the Court
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