Mr and Mrs Shanley v Ku-ring-gai Municipal Council

[2003] NSWLEC 391

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Land and Environment Court

of New South Wales

CITATION:

Mr & Mrs Shanley v Ku-ring-gai Municipal Council [2003] NSWLEC 391

PARTIES:

APPLICATION
Mr & Mrs Shanley

RESPONDENT
Ku-ring-gai Municipal Council

FILE NUMBER(S):

10802 of 2003

CORAM:

Tuor C.

KEY ISSUES:

Development Application :- detached dual occupancy single storey dwelling
consistency with character of the area
impact on amenity

LEGISLATION CITED:

State Environmental Planning Policy Number 53.

CASES CITED:

DATES OF HEARING:

10/12/03

EX TEMPORE
JUDGMENT DATE :

12/11/2003

LEGAL REPRESENTATIVES:

APPLICANT
Mr S. Kondilios
of Maddocks Lawyers

RESPONDENT
R. K. Graham
of Abbott Tout

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10802 of 2003

Tuor C

11 December 2003

Mr & Mrs Shanley
Applicant
v

Ku-ring-gai Municipal Council
Respondent

Judgment

1 . This is an appeal against the refusal by Ku-ring-gai Municipal Council (the council) of a development application to construct a detached, dual occupancy, single storey dwelling at No. 3 Troon Place, Pymble, under State Environmental Planning Policy Number 53 (SEPP 53). A description of the site; its context; the background to the proposal; and the statutory context, are contained in the statements of evidence of Mr Ludwig, the town planner for the council, and Mr Minto, town planner for the applicant.

2 . The main issues in the appeal are whether the proposed single storey house at the rear of the property complies with the provisions of SEPP 53, particularly the requirement that it be compatible with the existing residential character of the locality and whether it will have an acceptable impact on the amenity of the adjoining residences.

3 . In relation to the existing character of the area, the experts generally agreed that this character could be described as large houses on large allotments in a bushland setting. The experts disagreed on whether the proposal would be compatible with this character. In Mr Ludwig’s opinion, the development did not respond to the sub-division pattern of the area and its interface with the bushland setting. In particular the requirement that only one building should be constructed on each allotment. He considered that placing another building on the site would impact on the amenity of neighbours and the bushland setting.

4 . Mr Minto’s opinion was that the proposal in its size, height, setbacks and landscaping was appropriate to the site and the locality. In particular, he said the change in level of the site separated this part of the site from the lower level, which contained the existing dwelling. This provided an appropriate location for a dwelling that would have negligible impact on the existing house, the adjoining properties and the bushland setting.

5 . I accept Mr Minto’s evidence. From the aerial photo, No. 3 Troon Place is one of the larger allotments in the subdivision having an area of over 1,300 sq m. The proposed dwelling is to be located at the rear of the site, which is separated from where the existing house is by a rock ledge and has an area of some 400 to 450 sq m. The proposed dwelling, in comparison to other houses in the sub-division is modest, having a floor area of approximately 100 sq m and being only single storey. As such the size of the proposed dwelling and the size of its “site” are compatible and although different to other dwellings in the area, maintain the key character of the area of dwellings set in bushland settings. As such the proposal is consistent with SEPP 53.

6 . In relation to the impact on adjoining neighbours, the Court heard from:

• Mr and Mrs Garbler, 5 Troon Place. A submission prepared on their behalf by Mr Harvey Saunders, town planner, was also provided to the Court;
• Mr J Holgate, 7 Troon Place;
• Mr and Mrs Brauer, 18 Dakara Close;
• Mr Dukino, 11 St Andrews Drive.

7 . The main concerns of the adjoining residents at No. 5 Troon Place and 18 Dakara Close were privacy, both visual and aural, overshadowing and the changes to the outlook that they currently enjoy.

8 . The concerns of the Garblers related to overlooking of their kitchen window from the entry to the proposed dwelling and the noise they would experience from people accessing and using the property. They were also concerned about loss of privacy from other rooms in the house and from their outdoor area and swimming pool and the overshadowing of the kitchen window and outdoor area.

9 . The Brauers held similar concerns about the impact of noise on their kitchen, dining and eating area and adjoining outdoor area. Both residents were concerned that the existing outlook over trees, which they currently enjoy, would change and that the roof of the proposal would be clearly visible. They stated that the reason for purchasing in the area was the leafy outlook, which they thought would not change, particularly because of the covenant, which was placed over the original subdivision.

10 . Mr Holgate raised concerns about the shared access driveway and the impact of increased traffic. This was not raised as an issue by council. Mr Dukino raised a general concern about the precedent that approval of this development would set.

11 . Mr Ludwig supported the views of the residents. In Mr Minto’s opinion the impact of the dwelling would be negligible as it was single storey, set back from the boundaries and well landscaped. The only area for overlooking was at the front door, which he considered, was adequately addressed by the proposed fence and planting. Other overlooking was from bathrooms and bedrooms and studies, which in his opinion, was acceptable due to the use of the rooms and their distance from the proposal. Also, the main living areas would not be affected. In his opinion noise from the dwelling would be no different to that expected in a residential area. He acknowledged that the roof of the dwelling would be visible but stated that this of itself was not a grounds for refusal and was contemplated by the controls in SEPP 53.

12 . While I understand the concerns of the residents that the area in which they chose to live would change, the proposal is permissible under the provisions of SEPP 53. The question before the Court is whether the change resulting from the development complies with the requirements of this plan and has an acceptable impact on the amenity of the residents. In answering this question I accept the evidence of Mr Minto. While the development will be visible from adjoining properties, will change their outlook, and will have an impact, this change and this impact is reasonable and as contemplated by SEPP 53.

13 . The main impact of the development is the overlooking of the kitchen and the increased overshadowing of No 5 Troon Place. The overlooking is mitigated and by the planting and fence and is acceptable. The overshadowing, even if the overshadowing from the fence is not taken into account, does not significantly reduce the sunshine enjoyed by the property and is acceptable. These issues of themselves would not warrant refusal of the application.

14 . The other issues in the statement of issues have been resolved or dealt with by conditions.

15 . The orders of the Court are:

1. The appeal is upheld.
2. The development application for a detached, dual occupancy, single storey dwelling at No. 3 Troon Place Pymble is determined by approval, subject to the conditions at Annexure "A".
3. The exhibits except exhibits A, 7 and 10, may be returned.
___________
Annelise Tuor
Commissioner of the Court
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