Lyndon Fields Pty Ltd v Ku-ring-gai Council

[2005] NSWLEC 570

Land and Environment Court

of New South Wales

CITATION:

Lyndon Fields Pty Ltd v Ku-ring-gai Council [2005] NSWLEC 570

PARTIES:

APPLICANT
Lyndon Fields Pty Limited

FILE NUMBER(S):

10600-01 of 2005

CORAM:

Tuor C

KEY ISSUES:

Development Application :- construction of two attached dual occupancies.
Impact on residential amenity

LEGISLATION CITED:

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

DATES OF HEARING:

26/09/2005

EX TEMPORE JUDGMENT DATE:

09/26/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr S. Kondilios, solicitor
of Maddocks Lawyers

RESPONDENT
Mr A. Hudson, solicitor
of Wilshire Webb

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

26 September 2005

10600-01 of 2005 Lyndon Fields Pty Limited v Ku-ring-gai Council

JUDGMENT

1 These are two appeals against the refusal by Ku-ring-gai Council of two dual occupancy developments at No. 51 Benaroon Avenue, St Ives. The parties agreed that the appeals should be heard together.

2 Appeal No. 10600 of 2005 relates to development application 379/05 for an attached dual occupancy on Lot 1 DP362015. Appeal No. 10601 of 2005 relates to development application 380/05 for a detached dual occupancy on Lot 2 DP362015.

3 The existing site is 2047.5 sq m with a single storey house. Council has approved subdivision of the site into two allotments, Lots 1 and 2. Both allotments are 1024.8 sq m and each has a frontage of 19.81 m to Benaroon Avenue.

4 A description of the site, its context and history of the development applications is contained in the Statement of Basic Facts.

5 The issues between the parties were resolved by amended plans, conditions and expert evidence of the Court Appointed arborist, Ms M Howden. The Court heard expert planning evidence on site from Mr I Glendenning, for the applicant, and Mr S Segall, for the council.

6 The following residents gave evidence:

· Mr McLennan, 53 Benaroon Avenue;

· Mr Morris, 49 Benaroon Avenue;

· Mr Easter, 42 Benaroon Avenue, and

· Ms Walters, 50 Benaroon Avenue.

7 The main concern of the residents was that each site proposed two dwellings, which the residents considered to be of excessive bulk and scale and uncharacteristic of the street.

8 The site is zoned Residential 2(c) under Ku-ring-gai Planning Scheme Ordinance (KPSO). Dual occupancy development is not permissible within this zone. The development gains its permissibility under the provisions of State Environmental Planning Policy No 53 (SEPP 53). The experts agreed that the proposal met the requirements of this policy.

9 Mr Glendenning outlined that the sites well exceeded the minimum area requirement in SEPP 53 of 600 sq m for detached dual occupancy and 400 sq m for attached dual occupancy. The proposed FSR for Lot 1 is 0.5:1 and Lot 2 is 0.42:1, which is below the 0.5 maximum standard in SEPP 53. In addition the built upon area for each proposal is less than the 60% of the site area requirement under KPSO. Lot 1 and Lot 2 have a built upon area of 49.5% and 51.62% respectively. Mr Glendenning concluded that compliance with these numerical requirements was indicative that the proposals were not an overdevelopment of their sites.

10 Both Mr Glendenning and Mr Segall agreed that from the street the proposal would appear as two separate houses that were different in their design to each other. The dwellings to the rear would not be clearly visible from the street due to the curved driveway, the larger dwelling being to the street, the various setbacks from the boundaries and landscaping. As such the proposal was consistent with the character of the area. I accept the opinion of these experts.

11 Mr McLennan raised concerns about the proximity of the development to the driveway of his battleaxe property. He was particularly concerned about the guest/ family room of the front dwelling on Lot 1, which is set back about 1 m and extends for about 6 m along the boundary to the driveway. I find its visual impact and that of the two dwellings along this boundary to be acceptable as there is a varied setback to both the ground and upper floors and they are screened by existing and proposed landscaping. The proposed dwellings are to the south of the driveway and there is no impact on privacy and solar access to other houses. Mr McLennan’s concerns about the water feature and the fence have been addressed by conditions.

12 Mr Morris’ concerns about the fence, the impact on his plants and the undergrounding of electricity have also been dealt with by conditions.

13 Ms Howden has recommended conditions regarding the two significant trees on the site which have been accepted by the applicant. I am satisfied that Ms Howden has addressed the concerns raised by council’s landscape officer and council did not press this issue. With the retention of these trees, the planting of additional canopy trees and landscaping of the site, the proposal dual occupancy developments will appear as dwellings in landscaped settings consistent with the character of the area.

14 The orders of the Court are therefore in relation to appeal No 10600 of 2005:

1. The appeal is upheld.
2. Development consent is granted for development application 379/05 for an attached dual occupancy at 51 Benaroon Avenue, St Ives on proposed lot 1 within DP362015 subject to the conditions set out in Annexure A to these orders.
3. The exhibits be returned except Exhibits 2, B and D.
4. No order as to costs.

In relation to appeal No 10601 of 2005:

1. The appeal is upheld.
2. Development consent is granted for development application 380/05 for a detached dual occupancy at 51 Benaroon Avenue, St Ives on proposed lot 2 within DP362015 subject to the conditions set out in Annexure A to these orders.
3. The exhibits be returned except Exhibits 2, C and E.
4. No order as to costs.

___________________

Annelise Tuor
Commissioner of the Court
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