Patterson and Leppinus v Ku-ring-gai Council - [2005] NSWLEC 668

Land and Environment Court

of New South Wales

CITATION:
Patterson and Leppinus v Ku-ring-gai Council [2005] NSWLEC 668

PARTIES:
APPLICANT
David and Renate Patterson and Lynne Leppinus
RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):
10258 of 2005

CORAM:
Bly C

KEY ISSUES:
Development Application :- Draft conservation area - heritage significance - streetscape - site landscaping - landscaping bond - residential amenity - accessibility.

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979

CASES CITED:
Falcomata v Ku-ring-gai Council (No. 2) [2005] NSWLEC 459 ;
Allen & Hawkes v Ku-ring-gai Council [2005] NSWLEC 227;
Newbury District Council v Secretary of State for the Environment [1981] AC 578

DATES OF HEARING: 26/10/2005

EX TEMPORE JUDGMENT DATE:
10/26/2005

LEGAL REPRESENTATIVES:
APPLICANT
Mr S Kondilios, solicitor
SOLICITORS
Maddocks
RESPONDENT
Mr P Marincowitz, solicitor
SOLICITORS
Phillips Fox

JUDGMENT:

- 5 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

26 October 2005

10258 of 2005 David & Renate Patterson and

Lynne Leppinus v Ku-ring-gai Council

JUDGMENT

This decision was given extemporaneously on site. It has been revised and edited prior to publication.

1 This appeal relates to development application No 1273/04 which is for the demolition of an existing dwelling and the construction of two attached dwellings pursuant to State Environmental Planning Policy (Seniors Living) ("SEPP - SL") at 71 Ku-ring-gai Avenue, Turramurra.

2 The rectangular shaped site comprises Lot A in DP 338548 and has an area of 1113 m2.

3 The existing dwelling on the site was designed by the late F Glynn Gillings, an important architect, in the 1940's. The dwelling is not heritage listed and the heritage experts were not concerned at its demolition.

4 The site is located within a draft Urban Conservation Area as proposed by the National Trust. The locality includes many two-storey mansions dating from 1890 and set within well established gardens. Streetscapes are characterised by quality fences and street plantings.

5 Apart from SEPP - SL the site is also subject to the provisions of the Ku ring gai Planning Scheme Ordinance wherein it is zoned Residential 2(c2).

6 The application was advertised and some 17 objections were received.

7 To assist the Court in dealing with this application, evidence and materials were provided by:

· Mr R Staas, a heritage consultant,

§ Mr I Glendinning, a town planning consultant,

§ Ms K Lithgow, a council town planner, and

§ Ms J Hill, the Court-appointed heritage consultant.

8 I also heard from an objector Mrs D Patterson of 69 Ku-ring-gai Avenue. Whilst on site the experts provided additional explanations of their reports in the context of their particular areas of expertise. The on-site hearing included an inspection of the site and its immediate environs.

9 The Statement of Issues makes reference to the following issues:

· The heritage significance of the area including the inclusion of the site within a conservation area identified by the National Trust,

· The heritage significance of the dwelling to be demolished,

· Streetscape and visual impacts,

· Bulk…

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 668
Decision Date: 10/26/2005

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the case of Patterson and Leppinus v Ku-ring-gai Council involved an appeal against the council's refusal to grant development consent for the demolition of an existing dwelling and the construction of two attached dwellings at 71 Ku-ring-gai Avenue, Turramurra. The applicants sought to develop the property in accordance with the State Environmental Planning Policy (Seniors Living). The rectangular site, Lot A in DP 338548, covers an area of 1113 square meters and is situated within a draft Urban Conservation Area proposed by the National Trust. The existing dwelling, designed by the late F Glynn Gillings, is not heritage listed, and the heritage experts were not opposed to its demolition. The site is zoned Residential 2(c2) under the Ku-ring-gai Planning Scheme Ordinance.

The legal issues before the court encompassed several matters, including the heritage significance of the site and the dwelling, streetscape and visual impacts, bulk and scale of the proposed building, site landscaping, impacts on neighbouring properties' amenity, accessibility, stormwater drainage, and concerns raised by objectors. The court also had to consider the appropriateness of imposing a condition requiring a landscaping bond. Various experts provided reports and evidence, including a heritage consultant, a town planning consultant, a council town planner, and a Court-appointed heritage consultant. The court heard from an objector, Mrs D Patterson, and conducted an on-site inspection of the property and its surroundings.

The court considered the materials provided and the evidence presented by both parties. It found that the proposed design was suitable for the draft Urban Conservation Area, and the objections raised were adequately addressed in the experts' reports. However, the court disagreed with the council's imposition of a landscaping bond. While acknowledging that landscaping is a planning purpose and an essential part of the development, the court concluded that a bond, even though associated with the planning purpose, was not itself a planning purpose. Consequently, the court decided to delete the condition from the consent.

The final orders of the court were that the appeal was upheld, development consent was granted for the proposed development in accordance with the State Environmental Planning Policy (Seniors Living), and exhibits 1, A, B, and J were retained.

Orders