O'Keefe v Ku-Ring-Gai Council

[2007] NSWLEC 486

Land and Environment Court

of New South Wales

CITATION:

O’Keefe v Ku-Ring-Gai Council [2007] NSWLEC 486
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

APPLICANT
Paul O’Keefe

RESPONDENT
Ku-Ring-Gai Council

FILE NUMBER(S):

10517 of 2007

CORAM:

Brown C

KEY ISSUES:

Development Application :- construction of carport and alterations to an existing dwelling - streetscape

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Ku-Ring-Gai Planning Scheming Ordinance

DATES OF HEARING:

2/08/07

EX TEMPORE JUDGMENT DATE:

2 August 2007

LEGAL REPRESENTATIVES:

APPLICANT
Ms M Carpenter, barrister

RESPONDENT
Mr A Hudson, solicitor
SOLICITORS
Wilshire Webb Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

2 August 2007

10517 of 2007 Paul O’Keefe v Ku-Ring-Gai Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the determination, by refusal, of an application under s 82A of the Environmental Planning and Assessment Act 1979 to review the refusal of Development Application No. 1203/05 by Ku-Ring-Gai Council (the council) for the construction of carport and alterations to an existing dwelling at 10 Nulla Nulla Street, Turramurra (the site).

2 The proceedings were conducted as an On Site Hearing on 2 August 2007 and the judgement reflects the contents of the Statement of Basic Facts and the findings given on site.

3 The proposal provides the erection of a carport measuring 6 m wide x 5.7 m deep to be located in front of the existing dwelling and set back 4.85 m from the front boundary. The alterations involve a new window at the rear of the dwelling following the demolition of an existing carport structure within the side setback and a glass canopy over the front access stair to provide all weather access from the proposed carport to the dwelling. The council raised no specific objections to the alterations to the dwelling or the design of the proposed carport.

4 The site is within the Residential 2(c2) zone of the Ku-Ring-Gai Planning Scheming Ordinance. The proposal is permissible with consent within this zone. Clause 25D(2) provides objectives for residential zones. Relevantly, objective (d) seeks "to minimise adverse impacts of car parking on landscaped character".

5 The Ku-Ring-Gai Residential Designed Manual - Development Control Plan No. 38 (DCP 38) applies. Clause 4.5 provides requirements for access and parking. Objective (a) seeks "to encourage the integrated design of vehicle access and functional car parking facilities to minimise adverse visual and environmental impacts on the streetscape". Clause 4.5.3 provides objectives and requirements for the design of carports and the garages and cl 4.5.4 provides objectives and requirements for the location of parking structures.

6 The issues raised by the council in the proceedings related solely to the impact of the carport on the streetscape.

7 In the company of representatives from both parties a site view was undertaken of Nulla Nulla Street to assess the streetscape. Nulla Nulla Street is a cul de sac with some 17 lots, comprising dwellings with frontage to the street, battle axe properties and properties with another street frontage. The setbacks of dwellings vary within the street however structures were located within the setback area (between the dwelling and the street boundary) in 8 properties in the street to accommodate vehicle parking.

8 With the benefit of the site view, I am satisfied that the proposed car port (with the exception of the width which is discussed later in the judgment) is acceptable. The structures within the setback area differed considerably in terms of the construction and setback and consequently the impact on the streetscape however the most relevant carport structure is located at 6 Nulla Nulla Street. It is a relatively new construction and separated by only one dwelling and has a similar size and form to that proposed in this application.

9 The proposal provides for a 6 m wide car port whereas cl 4.5 identifies the width of a carport that 2.7 m. Taking into consideration the need to minimise the impact on the streetscape, it would be reasonable that the carport should minimise the width to minimise the impact on the streetscape. At the hearing, the width was discussed and I accept that a width of 5.6 m would be appropriate taking into account the proximity of the carport to the western boundary and the existing landscaping along this boundary.

10 DCP 38 does not seek to prohibit the construction of carports within the setback area but provides requirements for their construction. Clause 4.5.3 provides that the carport "should be sympathetic to existing development on site" and "should not dominate the site or the streetscape”. I am satisfied that the proposal is consistent with these objectives.

11 I am also satisfied that the proposal satisfies the relevant design requirements in that it is open-sided, maximises the distance from the front boundary and is of the scale and form that is compatible with the streetscape character.

12 The Orders of the Court are;

1) The appeal is upheld.
2) Development Application No. 1203/05 for the construction of carport and alterations to an existing dwelling at 10 Nulla Nulla Street, Turramurra is approved subject to the conditions in Annexure A.
3) The exhibits are retained.

_____________
G T Brown
Commissioner of the Court

26/09/2007 - The word incompatible was changed to compatible. - Paragraph(s) 11