Scott v Ku-ring-gai Council

[2006] NSWLEC 172

Land and Environment Court

of New South Wales

CITATION:

Scott v Ku-ring-gai Council [2006] NSWLEC 172

PARTIES:

APPLICANT
Donald Andrew Scott

RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):

11380 of 2005

CORAM:

Murrell C

KEY ISSUES:

Development Application :- Section 97 for a carport, setbacks , streetscape, character, landscape

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Ku-ring-gai Development Control Plan
Ku-ring-gai Planning Scheme Ordinance

CASES CITED:

Stockland v Manly CC;
Zhang v Canterbury CC

DATES OF HEARING:

28/02/2006

EX TEMPORE JUDGMENT DATE:

02/28/2006

LEGAL REPRESENTATIVES:

APPLICANT
M D. Scott, litigant in person

RESPONDENT
Ms K. Eggleton, solicitor
of Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell J S

28 February 2006

11380 of 2005 Donald Andrew Scott v Ku-ring-gai Council

JUDGMENT

1 This is an extempore judgment for an appeal under section 97 of the Environmental Planning and Assessment Act 2000 against Ku-ring-gai Council’s refusal of a Development Application for a carport at the premises known as No. 21 Kiparra Street, Pymble.

2 The development application was refused by the Council in May 2005 and the applicant subsequently appealed to the Court. The Council provided a statement of issues to on-site proceedings this morning. In summary the issues are that the proposed carport will detract from the appearance of the dwelling and will be unsympathetic to the existing natural and built environment in this location and also that the objectives set out in schedule 9 of Council’s Local Environmental Plan are not satisfied.

3 The proposed carport is between 7.4 m and 8.4 m from the front boundary. Council’s requirement in its Development Control Plan (DCP) requires a minimum setback of 12 m and an average setback of 14 m. It is noted that the house is setback some 17 m in part from the street.

4 The Council states DCP No. 38 in 2002, has required the setbacks to carports and other structures in terms of preserving the streetscape amenity of its residential areas.

5 The subject site is zoned Residential under the Ku-ring-gai Planning Scheme Ordinance and the relevant provisions are contained in Schedule 9 for Residential Zones in particular Council states:

a. That the aim of the residential area is to maintain and were appropriate improve the existing environmental character of residential zones and
b. To permit new residential development only where it is compatible with the existing environmental character of the locality and has a sympathetic and harmonious relationship with its adjoining development.

6 Council also contends that the proposal is not consistent with the provision that all additions to the existing dwelling houses are to be of a height, size and bulk generally in keeping with that of neighbouring properties.

7 Council is of the opinion that the proposed carport, which is a minimalist structure, will not be integrated with the existing dwelling on the subject site and it will be dominant in the streetscape given the breach of the minimum front setback under councils controls.

8 The DCP provides for assessment criteria for building setbacks and in particular to maintain streetscape character and the amenity of neighbouring properties. Other objectives include protect significant vegetation and facilitate efficient use of the site.

9 The council refers to the Australian Standards for the construction of garages and carports. The DCP states, the design of carports and garage should be sympathetic to the existing development on site and consider adjacent buildings as well as proximity to drainage systems; carports and garage structures should not dominate the site or the streetscape, this is to be achieved by the use of compatible materials, colours scale and roof pitch. Other criteria include locating parking at the rear of the site where access is available in this instance that is not applicable; integrating structures within the development, this is applicable to this particular development application; limiting garages to single or double. There is a note that only open sided carports will be considered in front of the building line where it is not possible to provide parking behind the building line. The location of carports/garages needs to consider existing trees and structures on the site and the visual character of the area.

10 The council referred to the case of the previous Chief Judge of this Court McClellan J. in Stockland v Manly CC where a DCP has been applied consistently that it is a reflection of the community aspirations for an area and clearly on council’s evidence the DCP has been applied consistently. In the matter of Zhang v Canterbury CC his honour the Chief Judge of New South Wales, Court of Appeal stated that the DCP should be given genuine, proper and realistic consideration and at the same time it is also noted that DCPs are not determinative but a discretionary matter and should provide decision makers with guidance.

11 I have given central consideration to council’s development control plan and it requires an assessment in the context of the streetscape and in the context of this street I see here today given the vegetative nature of the area and in the circumstances of this case I consider a single carport which does not comply with the 12 m building setback is appropriate as it will still meet council’s objectives. However, I have expressed concerns about the design of the structure, whilst it is minimalist that does not necessarily mean that a structure is not obtrusive or of a satisfactory design and in this regard I consider that an amended plan to show details of how the structure can sit comfortably more with the design of the dwelling house and provide greater details and landscaping is required before any final orders of Court could be issued.

12 The Court has taken an extensive walk of the streets in order to understand the streetscape and the various setbacks. The Court has the benefit of Mr Ho and council’s engineer in the proceedings and the applicant provided a submission in terms of identifying those dwellings where carports have been built that do not comply with the 12 m setback and I’ve stated these would appear to be pre the DCP of 2002. There are more recent examples of where there have been extensions approved which encroach the 12 m setback in particular the adjoining dwelling next door that has an extension integrated with the house with the provision of a double garage is some 7 to 8 m from the street alignment. There are also other examples of recent dwellings that do not comply and have garages forward of the main face of the building and forward of the 12 m setback.

13 The Court must assess each development application on its merits and in this regard I consider that the general location of a carport forward of the 12 m line but with the minimum setback of 7.4 m in the circumstances of this case would be satisfactory given the ability of the vegatated nature of the property to absorb the structure while retaining the significant canopy trees and providing further landscaping. However, the Court requires the submission of a further plan to show details, materials, colours and finishes and also landscaping in terms of the carport providing a ‘fit’ with the streetscape and the existing dwelling.

14 I should have stated earlier the proposal is for a carport forward of the existing single garage which is underneath a single storey dwelling house such that there will be a tandem arrangement for parking for the subject dwelling. Given the size of the site and the extent of soft landscaping area an additional parking space is not unreasonable in the circumstances as it could be accommodated appropriately on the site given detailed design and landscaping.

15 The timetable for the submission of the amended plans is that they are to be filed and served (that is submitted to the council and also submitted to the Court) by 28 March 2006. Council has 7 working days in which to consider such plans and comment to the Court on the satisfaction or otherwise of the plans and with the appropriate amended set of conditions. Upon receipt of: the plans; the council’s comments; and amended conditions if the Court assesses the new plans as meeting its requirements then it will be in a position to issue formal orders after that time. There is liberty to restore on 2 days notice such that if council has any concerns and they wish to address the Court they will be able to do so also the applicant will be able to avail themselves the same opportunity.

16 In accordance with the above findings made on 28 February 2006 the amended plans have now been submitted and are satisfactory and the Council has filed amended conditions.

17 The formal orders are issued in Chambers 4th April 2006.

18 Accordingly the formal Orders of the Court are:

1. The appeal in respect of the property known as No. 21 Kiparra Street, Pymble is upheld.

2. The development application submitted to Ku-ring-gai Council and as shown in the amended plans is approved subject to the conditions contained in Annexure ‘A’.

3. The exhibits are returned with the exception of Exhibits B, 4 and 7.

___________________

J S Murrell
Commissioner of the Court
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