Shaynd v Ku-ring-gai MC

[2005] NSWLEC 360

Land and Environment Court

of New South Wales

CITATION:

Shaynd v Ku-ring-gai MC [2005] NSWLEC 360

PARTIES:

APPLICANT
Mark Shaynd

RESPONDENT
Ku-ring-gai Municipal Council

FILE NUMBER(S):

11366 of 2004

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Dual Occupancy Development - Bushfire risk - Amenity - Public interests.

LEGISLATION CITED:

Ku-ring-gai Planning Scheme Ordinance
State Environmental Planning Policy 53
Planning for Bushfire Protection 2001

DATES OF HEARING:

28/04/2005, 10/05/2005

EX TEMPORE JUDGMENT DATE:

05/10/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr T. Hones, solicitor
of Hones Solicitors

RESPONDENT
Mr R. Graham, solicitor
of Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

10 May 2005

11366 of 2004 Mark Shaynd v Ku-ring-gai Council

JUDGMENT

1 The appeal arises out of council’s refusal of a development application for the construction of two detached dual occupancy dwellings on land at No. 86 Kitchener Street, St Ives.

2 The subject land is a relatively large battleaxe shaped lot and under the Ku-ring-gai Planning Scheme Ordinance, it is zoned residential 2(c) and dual occupancy development is prohibited. However, this site is subject to the provisions of SEPP 53 and because of its residential zoning, unless the land is with an area described as Schedule 3, a dual occupancy development is permitted.

3 On 19 December 2003, Amendment 10 was made to SEPP 53 and this identified part of the subject land within an area described in Schedule 3 as being in a bush fire prone area as shown on the Bushfire prone map certified under s 146 of the Act as “Bushfire prone land - vegetation category 1” and part Bushfire prone - vegetation buffer” on (the Bushfire map)”.

4 The amendment does not contain any reference to the land that is within an area described in Schedule 3 that is identified on the bushfire map as “Bushfire prone – vegetation buffer”.

5 No part of the proposed dwellings protrude within the area identified on the Bushfire map and all the physical elements of the proposed dwellings are within the area identified on the Bushfire map as “Bushfire prone - vegetation buffer”.

6 Part of the driveway, some of the landscaped area and part of the private open space of the proposed dwelling “B” are located in an area identified on the “Bush map as Bush fire prone land - vegetation category 1”.

7 However, to determine the effect of, and any restriction on the development of the land pursuant to this amendment, this was considered by the Chief Judge who decided that the Court has power to approve the subject application.

8 Consequently, the main outstanding merit issues concern;

• The bushfire risk assessment,
• Amenity impact on neighbours and
• Public interest matters concerning traffic, precedence, privacy and safety.
  

THE EVIDENCE

9 In response to the issues, detailed evidence was presented by:

• Mr T O’Toole, development control officer with the Rural Fire Service of New South Wales, and
• Mr G Swain, a bushfire consultant.
  

10 The oral evidence from a number of residents was considered together with the written objections in the council’s bundle.

11 Insofar as the primary issue concerns bushfire risk, this was considered in a joint conference between the respective experts. Mr O’Toole’s based his initial assessment in the context of his experience in the St Ives area where Mona Vale Road is the primary access way to and from the peninsula north of Link Road, where the bushfire risk could involve bushland in and around the Ku-ring-gai National Park. From this assessment of the site and the surrounding land vegetation he was dissatisfied with the level of fire safety. But he concluded that with minor modifications, the proposal could be brought to a suitable standard for compliance with the provisions of “Planning for Bushfire Protection 2001”.

12 Consequently, modifications have been made to the proposal, which includes the provision of an on-site water storage tank for use in fire suppression. Also he indicated the need for maintenance of an asset protection zone on the adjoining properties, Lots 47, 48 and 49 (and the applicant agrees to this) being achieved by way of a primary deferred commencement condition, this requirement being imposed to effectively secure the necessary easements.

13 With respect then to the threshold bushfire risk issue, I am satisfied to rely on the agreement of both the bushfire consultants that this amended proposal represents an acceptable level of risk, taking into account the adequacy of the proposed access and the maintenance of the surrounding Asset Protection Zone (APZ) , together with the incorporation of the onsite water storage tank. In my opinion then, this issue can now be reasonably addressed by the agreed conditions of consent.

14 Overall, I consider there is a net positive community benefit by the joint neighbours management of this surrounding Asset Protection Zone, which provides a reasonable level of security for a number of adjoining properties and this is to be done and managed in accordance with the details that satisfy the Rural Fire Services requirements.

15 In so far as the residents expressed genuine concerns about the entry/egress arrangements in a bushfire emergency, I note that the bushfire experts do not consider the incremental change of this development to create one more lot on the subject land, results an unacceptable level of risk for emergency access.

16 Nevertheless, I note that the bushfire experts referred to the responsibility of the Hornsby - Ku-ring-gai Local Emergency Committee which has the opportunity to prepare a local emergency plan for this area but apparently has made little progress over a number of years. This indicates to the Court that this is apparently not such a high priority as expressed by the residents. Accordingly, I do not consider there are reasonable grounds to reject this application on the grounds of access/egress, including for bushfire fighting vehicles in an emergency.

17 The other concerns of the residents are the style of dual occupancy development and the likelihood of setting a precedent for other similar developments.

18 Whilst I acknowledge dual occupancy is not permitted on this site under the KPSO, nevertheless SEPP 53 overrides this and is the prevailing control. There has been a detailed assessment of the proposal relative to the criteria in SEPP 53 (this is contained in exhibit 2). By reference to the compliance schedule the proposal demonstrates compliance and the conclusion that the site is suitable for the proposal, except for the bushfire risk.

19 As this bushfire risk has subsequently been resolved, I now consider the proposal is suitable for the site based on its merits.

20 With reference to precedence, I note that any application should be considered on its merits, relative to the prevailing controls. In this regard presumably council has the opportunity to put in place appropriate residential controls, which could avoid reliance on SEPP 53, if it does not achieve the desired outcomes.

21 The other objections concerned are the drainage impacts on the adjoining No. 84, but this has been reasonably addressed in the revised landscaping plan by incorporation of a barrier kerb to restrict overland flows, which I now consider reasonable.

22 Another objection concerned overlooking to neighbouring properties. However, considering the location of the first level highlight windows and the relative separation distances and the mature existing vegetation to be maintained, I am satisfied that the privacy aspects are reasonable and not sufficient to warrant rejection of the proposal.

23 In summary then, I am satisfied that this proposal satisfies the provisions of the prevailing contribution SEPP 53 and incorporates adequate bushfire protection measures to present a reasonable level of risk to merit consent.

24 The Court order then are:

1 The appeal is upheld.

2 Development consent is granted to DA 0688/04 for the demolition of an existing dwelling and erection of a detached dual occupancy development at No. 86 Kitchener Street, St Ives, subject to the conditions in Annexure A.

3 The exhibits may be returned except for Exhibits 1, 3, Tab 11 (exhibit 12), A, B, F and G.

_________________________

R Hussey

Commissioner of the Court

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