Leonard v Ku-ring-gai Council - [2005] NSWLEC 126

Land and Environment Court

of New South Wales

CITATION:
Leonard v Ku-ring-gai Council [2005] NSWLEC 126

PARTIES:
APPLICANT
Mr B Leonard and Carnegie Credit Management Services Pty Ltd
RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):
11389 of 2004

CORAM:
Moore C

KEY ISSUES:
Development Application :-
Dual occupancy
Character of area
.

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979 s 149
Rivers and Foreshores Improvement Act 1948
State Environmental Planning Policy 53
Ku-ring-gai Planning Scheme Ordinance
Residential Design Manual – Development Control Plan 38
.

CASES CITED:
Leonard v Ku-ring-gai Council [2004] NSWLEC 330;
Segal & Anor v Waverley Council [2004] NSWLEC 363;
Tenacity Consulting v Warringah [2004] NSWLEC 140;
.

DATES OF HEARING: 18 and 22 March 2005

DATE OF JUDGMENT:

03/30/2005

LEGAL REPRESENTATIVES:
APPLICANTS
Mr A Galasso, barrister
INSTRUCTED BY
Maddocks Solicitors
RESPONDENT
Ms J Jagot, barrister
INSTRUCTED BY
Deacons Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

30 March 2005

04/11389 B Leonard & Carnegie Credit Management Services Pty Ltd v Ku-ring-gai Council
JUDGMENT

Introduction

1 Commissioner: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed (and subsequent actual) refusal by Ku-ring-gai Council (the council) of Development Application 997/04 for construction of three dwellings on what is presently Lot D in DP 324517, known as 20 Warwick Street, Killara (the site). As the council has approved a subdivision of the site into two allotments, the present application seeks consent to construct a single dwelling on the proposed allotment fronting Warwick Street and a detached dual occupancy development on the proposed rear, battle-axe allotment.

2 In June 2004, Cowdroy J dealt with (and refused) Development Application 1652/03 to construct two detached dual occupancy developments on the site (subdivided in a slightly different configuration): see Leonard v Ku-ring-gai Council [2004] NSWLEC 330.

3 As a consequence, the position is that, if I reached a factual conclusion on any issue which differed from that reached by Cowdroy J, I would be obliged to articulate my reasons for drawing such different conclusion: see Segal & Anor v Waverley Council [2004] NSWLEC 363.

The site

4 The site has an area of 2928 sq m. It has a frontage to Warwick Street of 41.7 m and a depth of ~ 70 m. It is located on the western (low) side of Warwick Street. Although the site is not squarely east-west oriented, for the purposes of this decision, I will treat the Warwick Street boundary as being to the east.

5 The site slopes ~ 13 m from front to rear. It also slopes, more gently, down from south to north. A watercourse follows the northern boundary of the site. A number of large trees, mainly Sydney Blue Gums, are growing beside the creek or in the riparian zone. Other trees are scattered throughout the site, which is currently developed with a single dwelling house located towards the centre of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWLEC 126
Decision Date: 03/30/2005

CaseChat Overview and Summary

In Leonard v Ku-ring-gai Council, the Land and Environment Court of New South Wales heard an appeal by Mr B Leonard and Carnegie Credit Management Services Pty Ltd against the refusal by Ku-ring-gai Council of a development application for three dwellings on a site at 20 Warwick Street, Killara. The site is zoned residential 2(b) under the Ku-ring-gai Planning Scheme Ordinance, and dual occupancy development is not permissible within this zone. However, State Environmental Planning Policy No 53 - Metropolitan Residential Development overrides the KPSO to permit dual occupancy development, subject to various tests. The primary issue in contention was whether the proposed dual occupancy contributed to the character of the area as required by SEPP 53. The court found that the proposed dual occupancy did not contribute to an attractive residential environment with clear character and identity, as it would appear as one homogenous development with little separation between the houses, contrary to the character of the area. The court also found that the proposed single dwelling on the Warwick Street frontage was generally compliant with the KPSO and the Residential Design Manual – Development Control Plan. The court indicated that, if the applicants wished, it would grant consent for the proposed single dwelling on the Warwick Street frontage, subject to conditions. The applicants were given directions to advise the court and the council of their intentions regarding the consent for the proposed single dwelling on the Warwick Street frontage, and to file and serve plans and conditions accordingly.

Orders