Leonard v Ku-ring-gai Council

Land and Environment Court

of New South Wales

CITATION:

Leonard v Ku-ring-gai Council [2004] NSWLEC 330

PARTIES:

APPLICANT
Mr B Leonard and Carnegie Credit Management Services Pty Ltd

RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):

10116 of 2004; 10117 of 2004

CORAM:

Cowdroy J

KEY ISSUES:

Appeal :- development incompatible with surrounding development

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979, s 88B, s 91
Ku-ring-gai Planning Scheme Ordinance
Rivers and Foreshores Improvement Act 1948, s22B
State Environmental Planning Policy No 53 - Metropolitan Residential Development

CASES CITED:

DATES OF HEARING:

01/06/2004; 03/06/2004

EX TEMPORE
JUDGMENT DATE :

06/03/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr S. Kondilios (Solicitor)

SOLICITORS
Maddocks Lawyers

RESPONDENT
Mr P. Rigg (Solicitor)

SOLICITORS
Deacons

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10116 of 2004;
10117 of 2004

Cowdroy J

3 June 2004

Mr B Leonard and Carnegie Credit Management Services Pty Ltd

Applicant
v

Ku-ring-gai Council

Respondent

Judgment

Introduction

1 This is an appeal against the refusal by Ku-ring-gai Council (“the council”) of a development application (No 1652/03) to construct two detached dual occupancy developments on lot D in DP 324517, known as 20 Warwick Street, Killara (Appeal No 10117 of 2004). I record that in this appeal I have been assisted by Commissioner Tuor of the Court.

2 A development application (No 1653/03) to demolish the existing house and subdivide the site into two allotments was approved by council but the applicant is appealing against a condition of development consent (“Condition 55”) which requires the boundary between the allotments to be straightened (Appeal No 10116 of 2004). The applicant stated that this appeal would be discontinued if the appeal against the refusal of the dual occupancy developments was not upheld.

The site and its context

3 The site is located on the western side of Warwick Street, Killara. It has an area of 2928 square metres with the frontage to Warwick Street of 41.7 metres and a depth of about 70 metres. The site is located on the low side of Warwick Street and slopes approximately 13 metres towards the rear of the property. A watercourse follows the northern boundary of the site. A number of large trees, mainly Sydney Blue Gum are growing beside the creek. Other trees are scattered throughout the site, which is currently developed with a part one, part two-storey house located towards the centre of the site.

4 The surrounding area is characterised by single dwellings on large allotments in landscape settings. The allotments include a number of battle axe blocks and the houses are predominantly one and two-storey with some three-storey houses. There are a range of style and sizes, predominantly dating from the 1950’s and 60’s. Although there are some earlier houses, generally smaller cottages as well as more recent, larger houses. The gardens and streets in the area have large canopy trees that contribute to the character of the area.

Background

5 The applications were lodged on the 16 December 2003. They were notified to nearby residents…