Ray Fitzgibbon Architects v Ku-ring-gai Council

[2005] NSWLEC 750

Land and Environment Court

of New South Wales

CITATION:

Ray Fitzgibbon Architects v Ku-ring-gai Council [2005] NSWLEC 750

PARTIES:

APPLICANT
Ray Fitzgibbon Architects

RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):

11029 and 11030 of 2005

CORAM:

Moore C

KEY ISSUES:

Development Application - Subdivision :-
Bushfire risk

DATES OF HEARING:

7 and 9 December 2005

EX TEMPORE JUDGMENT DATE:

12/09/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr C McEwen SC
INSTRUCTED BY
Staunton Beattie

RESPONDENT
Mr P Marinkowitz, solicitor
Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C

9 December 2005

05/11029 and Ray Fitzgibbon Architects
05/11030 v Ku-ring-gai Council

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal is the grant of two development consents subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, copies the Court’s Orders and the conditions in each matter may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at
JUDGMENT

1 COMMISSIONER: The two matters that are presently before the Court are appeals relating to premises presently known as 406 Mona Vale Road, St Ives (the site). Virtually all the site is designated as being at bushfire risk.

2 The proposal is to re-subdivide what are technically two existing allotments by way of significant boundary alteration to the front of those two allotments.

3 The original proposal which came before the Court proposed a subdivision of two allotments into three allotments; additions and alterations to the existing dwelling; and the erection of two detached dual occupancy dwellings on each of the resulting new allotments. This would have resulted in five dwellings on the site.

4 As a consequence of discussions which took place during the site inspection, the applicant sought and was granted leave, which was not opposed by Mr Marincowitz, solicitor for the council, to amend the application so that the proposed result is two allotments - upon each of which there will be two detached dual occupancies. The development on the rear allotment will comprise a new dwelling and the renovated existing dwelling and, on the front allotment, there will be two separate new dwellings.

5 The principal reason for the amendment of the plans arose from concerns expressed by me and reinforced by my understanding of the evidence of Mr Swain, the court appointed bushfire expert, concerning turning and access for an emergency services vehicle on the site.

6 These concerns also reflected the concerns that were put by Ms Whitmore on behalf of the local community group.

7 The result is that there have been amended plans which have been considered both by the court appointed bushfire expert and by representatives of the Rural Fire Service which have significantly improved the emergency access and the ability of the Rural Fire Service to respond in the event that there is a fire of significance which threatens this property or its neighbours.

8 The version of the plans which is currently in Exhibit G will require further modification both as to the nature of the grass treated areas on the north and south of the elbow in the driveway and to reinstate the proposed location of the 40,000 litre onsite emergency fire fighting reservoir to the front of the property.

9 That emergency fire fighting reservoir will be equipped with a pipeline and standing hydrant being located in the elbow of the driveway near where it would be expected emergency fire vehicles will access the water supply for fire fighting purposes.

10 In addition, at a point approximate and convenient to that hydrant, there will be located a diesel pump together with the fire fighting equipment to operate from that hydrant (all as specified by Mr Swain).

11 In addition, because of the nature of the potential fire hazard to the site, the applicant has agreed to a condition to provide a similar diesel pump and fire fighting equipment which will be located near to and capable of sucking water from the swimming pool at the rear of the existing dwelling.

12 As a consequence of all these changes, I am satisfied that appropriate bushfire arrangements have been made that will not merely provide an appropriate standard of protection being available for the residences that will result from this development application but also provides a modest additional security benefit to other residences in the vicinity by virtue of the accessible 40,000 litre storage facility coupled with two pumps capable of extracting water for community fire protection purposes – pumps which are not dependent on the continued uninterrupted operation of the electricity supply to the area.

13 For these reasons, there is nothing arising from the bushfire issues that would prevent my consenting to the plans that are presently before the Court (subject to the amendments and tidying up that needs to be made both to the architectural and subdivision plans).

14 It is also conceded by the council that the architectural design which has resulted from the amended plans improves the amenity of both the new dwelling to be constructed on the rear allotment and the amenity of the existing dwelling on that allotment.

15 There are two matters, however, about which the council presses there is a real and legitimate planning concern arising entirely separately from the bushfire concern.

• First, there is an intrusion by the proposed front dwelling on the front allotment into what would otherwise be the required setback from Mona Vale Road and the frontage of the allotment to it, and
• Second, the council’s position is that the separation between the two dwellings proposed to be erected on the new front allotment is inadequate.

16 With respect to the first matter, the council puts that the position is out of character and inappropriate given the front building alignments of the dwellings both to the north and the south.

17 I am satisfied that the comparatively minor incursion of the front dwelling into the front setback (which occurs only at the ground level and not at the upper level) is, although perhaps undesirable, not sufficiently undesirable to warrant my intervention either to require an amendment to the plans or to refuse the application.

18 With respect to the separation between the dwellings, a similar position obtains.

19 Although a greater separation would, perhaps, provide a greater degree of amenity for the residents in each of those dwellings, nonetheless that which is proposed is adequate – the test in these proceedings being adequacy rather than excellence. Therefore, I am satisfied that there is no separation basis that would require my intervention with respect to the application.

20 I am therefore satisfied that the orders which I should make in the appeal are:

1. The two appeals are upheld (the council having no objection to the subdivision application); and
2. The development applications for both subdivision and for construction of three new dwellings and the additions and alterations to the existing dwelling should be granted development consent subject to conditions which remain to be settled between the parties.

21 The directions therefore are as follows:

1. The applicant is to file and serve revised plans by the close of business on 12 December;
2. The respondent is to file and serve revised conditions by the close of business on 12 December, that filing to be in accordance with Practice Direction 2 of 2005, (that is in electronic filing in rich text format);
3. The matter is set down for callover before the Registrar on 15 December; and
4. If directions 1 and 2 are complied with, I will make orders in chambers and vacate the callover.

Tim Moore

Commissioner of the Court