Scotcher v Ku-ring-gai Municipal Council

[2004] NSWLEC 427

Land and Environment Court

of New South Wales

CITATION:

Scotcher v Ku-ring-gai Municipal Council [2004] NSWLEC 427

PARTIES:

FIRST APPLICANT
M Scotcher

SECOND APPLICANT
C Scotcher

RESPONDENT
Ku-ring-gai Municipal Council

FILE NUMBER(S):

11542 of 2003

CORAM:

Moore C

KEY ISSUES:

Development Application :-

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

CASES CITED:

DATES OF HEARING:

13 May 2004

DATE OF JUDGMENT:

08/04/2004

LEGAL REPRESENTATIVES:

APPILCANT
Mr S Kondilios, solicitor
Maddocks

RESPONDENT
Mr P Rigg, solicitor
Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

04/08/04

03/11542 M & C Scotcher v Ku-ring-gai Municipal Council

JUDGMENT

1 COMMISSIONER: This is an appeal pursuant s 97 of the Environmental Planning and Assessment Act 1979 against the refusal by Ku-ring-gai Municipal Council (the council) to grant consent to a dual occupancy dwellings on an existing allotment at the corner of Boundary Road and Wahroonga Ave, Wahroonga. The matter was finalised, on the merits, during the course of an on-site inspection in the company of the legal representatives of the parties and their expert advisers on 13 May 2004. These reasons for decision are issued to formalize that process

2 The principal issues which the council stated as warranting refusal of the application were:

• the impact on two major trees on the site; and
• the fact that the bulk and scale of the proposed western dwelling would be inconsistent with the streetscape in the street when viewed from the west as part of the streetscape of Boundary Road.

3 The latter issue was particularly pressed in light of a development which surrounds the site and which is for persons over the age of 55 or with a disability.

4 Subsidiary issues relating to bushfire protection and solar access to the private open space of the western dwelling were also raised.

5 During the course of the site inspection, the entitlement of the owners to trim the branches of the two trees in contention, as a result of the location of the existing dwelling, was established with greater precision than had occurred prior to the inspection. As a result of this, it was agreed between the experts advising the parties that the impact on these trees was acceptable as the additional trimming, which would be necessary as a consequence of the proposed development, was not significantly greater than that which was already permitted as a consequence the location of the eaves of the existing dwelling on the site.

6 The applicant also agreed to a suggestion which would modify the line of a proposed retaining wall on the southeastern portion of the site so as to lessen the potential impact on the root zone of the southeastern of the two trees of concern.

7 Those issues having been resolved (and resolving the bushfire issue in the process), the single outstanding potentially determinative issue related to the presentation of the western of the two proposed dwellings in the streetscape of Boundary Road.

8 During the course of the hearing, the discussions took place between the planning witnesses of each of the parties to see if it were possible to resolve this issue. As a consequence of the these discussions, the applicant agreed to revise the proposal to incorporate a stepping down of the roof line of the western element of the western dwelling. Such stepping also resolved the issue of solar access to the rear private open space of this dwelling.

9 As a consequence of these changes, I determined that the proposal which would result from them would be satisfactory. I therefore adjourned the matter to the permit the preparation of revised plans incorporating the various amendments and indicated that, with the filing of revised plans and agreed revised conditions, I would make orders in Chambers upholding the appeal. This occurred and those orders were issued on 7 June 2004.

Tim Moore

Commissioner of the Court