Reid v Ku-ring-gai Council

[2006] NSWLEC 397

Land and Environment Court

of New South Wales

CITATION:

Reid v Ku-ring-gai Council [2006] NSWLEC 397

PARTIES:

APPLICANT
John Ross Reid v Ku-ring-gai Council

FILE NUMBER(S):

10214 of 2006

CORAM:

Bly C

KEY ISSUES:

Development Application :- Alterations and additions to existing dwelling house, subdivision of land, trees

LEGISLATION CITED:

Ku-ring-gai Planning Scheme Ordinance
Ku-ring-gai Residential Design Manual Development Control Plan No. 38

CASES CITED:

Quirante Holdings v Ku-ring-gai Municipal Council (2004) NSWLEC 134

DATES OF HEARING:

13/06/2006

EX TEMPORE JUDGMENT DATE:

06/13/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr S Kondilios, solicitor
SOLICITORS
Maddocks

RESPONDENT
Mr A Hudson, solicitor
SOLICITORS
Wilshire Webb

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

13 June 2006

10214 of 2006 John Ross Reid v Ku-ring-gai Council

JUDGMENT

This decision was given extemporaneously and has

been revised and edited prior to publication.

1 This appeal relates to development application No. 61/06, which is for alterations and additions to the existing dwelling house and the subdivision of land at No. 35 Spencer Road, Killara, into two lots, being Lots 10 and 11.

2 The rectangular shaped site comprises Lot 2 in DP 223754 and has a total area of 2,112 sq m. Apart from the existing dwelling house there are a number of mature trees on the site, generally occupying the area to the east of the dwelling house and between the street frontage and the middle of the site. The majority of these trees are contained on proposed Lot 11. The existing house will occupy proposed Lot 10.

3 The Spencer Road streetscape is characterised by single and double storey dwelling houses with a mix of architectural styles, which are generally set back to a fairly consistent building line. The streetscape is also characterised by substantial landscaping elements, including large canopy trees.

4 Expert town planning evidence was provided by Mr G Bolton on behalf of the council and by Mr I Glendinning on behalf of the applicant in the form of a joint report. Expert arboreal evidence was provided by Ms R Askew on behalf of the council and by Mr A Morton on behalf of the applicant, also in the form of a joint report.

5 The site is zoned Residential 2(b) under the Ku-ring-gai Planning Scheme Ordinance (“the planning scheme”). The proposed subdivision and building works are permissible with development consent. The planning scheme contains a minimum subdivision area development standard of 836 sq m and the proposed lots meet this requirement, having areas of 1209 sq m and about 901 sq m. Minimum lot width and landscape area requirements are either met by the two lots or are, in relation to the erection of the dwelling house on the new lot, capable of being met.

6 Also applicable is the Ku-ring-gai Residential Design Manual - Development Control Plan No. 38 (“the DCP”).

7 The planning scheme and the DCP contain objectives relevant to this application that require the maintenance or improvement of existing amenity and character and the conservation of landscape such that built form is compatible with the landscape and does not dominate it. No issue has arisen in relation to the various applicable standards within the DCP and I accept that if there are any non-compliances, they are of no determinative significance.

8 The application was advertised and there were no objections. The application was subsequently refused by the council on the recommendation of its staff for reasons including inconsistency with the aims and objectives of the planning scheme and the DCP, particularly in relation to tree preservation and streetscape character.

9 Having considered the evidence of the experts in the context of the Statement of Issues provided by the respondent, the determinative issue in this case is whether the applicant seeks to remove significant trees from the site such that the landscaping character objectives would not be met in relation to proposed Lot 11.

10 In relation to proposed Lot 10, no issues in this regard have arisen as no significant trees are to be removed from this lot as a consequence of its creation. Also, to meet the requirement of s 5.3.6 of the DCP, four additional canopy trees are to be planted so that there will be a total of seven such trees on this lot.

11 The applicant has provided in Exhibit A an indicative building footprint of 275 sq m for proposed Lot 11. Given the positioning of this footprint, three canopy trees within it are required to be removed and a further two canopy trees adjacent to it will also need to be removed. The respondent council has provided an alternative 200 sq m indicative building footprint that will facilitate the retention of the latter two trees.

12 There are 13 healthy canopy trees existing on proposed Lot 11. The five trees that the applicant seeks to remove, including the three trees that the council says can be removed, are of high significance. Four of the trees to be retained are also of high significance with the remaining four trees being of medium significance. The question that thus arises is whether the two trees that the council says should be retained are of such significance in the context of the applicable objectives that they should not be removed.

13 It was submitted on behalf of the council, as contended by Mr Bolton, that the trees as a group are a significant element in the streetscape, contributing to the character of the site, the streetscape and the locality. The removal of the extra two trees would be unnecessary and excessive, taking into account that a 200 sq m building footprint would allow the construction of a dwelling house of an appropriate size for this locality.

14 On behalf of the applicant, it was submitted that the retention of eight canopy trees of high and medium significance, as is proposed, is on balance an appropriate and balanced response to the planning objectives, taking into account that cl 5.3.6 of the DCP requires five canopy trees for Lot 11. Also the streetscape character of Spencer Road will be appropriately maintained by the subdivision and the erection of a new dwelling together with the intended retention of significant trees.

15 My attention was drawn to the decision of the Court in Quirante Holdings v Ku-ring-gai Municipal Council (2004) NSWLEC 134, where it was held that a balanced approach between retention of vegetation and built form was required. Also in that case it was effectively concluded that care needs to be taken to ensure that the retention of trees does not impose unreasonable constraints on the appropriate development of the site, taking into account the nature of surrounding development.

16 There are many large trees in the midst of this site in the location where one would, taking into account the existing pattern of development in the locality, normally anticipate the existence of a dwelling house. Taking this into account together with the planning controls, especially the applicable objectives, these trees amount to a significant and unreasonable constraint to what I believe to be the reasonable and orderly development of this land.

17 Whilst these trees as a group make a significant contribution to the streetscape, I do not accept that the removal of 5 of the 13 trees would so affect the streetscape as to warrant refusal of the application. Indeed, the retention of the eight canopy trees on this lot would make a greater contribution to the tree canopy in the streetscape than would most other nearby properties.

18 I have therefore decided to uphold the appeal and grant the development consent as sought with the building footprint in accordance with Exhibit A.

19 Apart from two minor changes, there was no dispute in relation to the conditions in Exhibit 9. The additional conditions in Exhibit 10 were the subject of particular dispute by the applicant and I have decided in relation to Condition 20A that the matter contained in sub-condition (c) should not be imposed, those being matters relating to the provision of a covenant. Such matters can be sufficiently effected by sub-conditions (a) and (b).

20 In relation to Condition 20B, which requires the applicant to make a further approach to the owners of the adjoining access way with a view to providing a common usage of that access way to provide access to lot eleven, I have decided that this approach warrants such a further inquiry and the condition is retained. As a consequence, Condition 20B(b) is also retained. This latter sub-condition appropriately provides for the construction of a driveway on lot eleven in such a manner as to protect the trees that might otherwise be affected by it.

21 One other condition is required and that is the condition discussed during the hearing, involving a provision that the five trees that are permitted for removal by this consent should not be removed until such time as there is an approved building development for the site.

___________________
T A Bly
Commissioner of the Court
rjs