Sivasamy v Ku-ring-gai Council

[2006] NSWLEC 327

Land and Environment Court

of New South Wales

CITATION:

Sivasamy v Ku-ring-gai Council [2006] NSWLEC 327

PARTIES:

APPLICANT
Kuna Sivasamy

RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):

11230 of 2005

CORAM:

Brown C

KEY ISSUES:

Development Application :- Consent Orders, demolition of existing building, construction of 5 townhouses, design, impacts, loss of views, height and privacy

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

30/05/2006

EX TEMPORE JUDGMENT DATE:

05/30/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr J. Hones, solicitor
SOLICITORS
Hones Lawyers

RESPONDENT
Mr A. Hudson, solicitor
SOLICITORS
Wilshire Webb

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

30 May 2006

11230 of 2005 Kuna Sivasamy v Ku-ring-gai Council

JUDGMENT

1 This matter comes before the Court for consent orders in relation to the demolition of an existing dwelling and associated structures on the site and the construction of five attached townhouses at 2 Fiddens Wharf Road, Killara.

2 In accordance with the Court’s Practice Direction – Consent Orders, objectors to a development application may give evidence in the Court’s hearing of the Consent Orders. In this regard the Court heard from Ms Peggy Becke of unit 5/510 Pacific Highway, Ms Alison Mullane of unit 6/510 Pacific Highway, Mrs Marianne MacColl on behalf of her son Mr Murray MacColl, who owns unit 8/510 Pacific Highway and Mr Mark Henderson of 33 Grassmere Road. The evidence from the local residents was taken onsite. The Court also had the benefit of documents containing the written submissions from the residents when the development application was lodged.

3 The development application was the subject of a number of amendments largely brought about by the concerns of the Court-appoint expert, Mr Lawrence Winnacott. Mr Winnacott produced an initial report that raised a number of significant issues in relation to the design and the impact on the adjoining residential properties, particularly the residential flat building at 510 Pacific Highway. The concerns resulted in amended plans.

4 The issues raised by the local residents from the residential flat building at 510 Pacific Highway centred largely on the proximity of the proposed townhouses and the loss of views from the lounge room and balcony areas. The Court visited the units of Ms Becke and Ms Mullane and an explanation was provided as to the impact on these properties from the proposed building.

5 The Court was advised that the views from the balconies and the lounge room areas of Ms Becke’s and Ms Mullane’s units would be largely lost because of the proposed development, although some view corridors were retained between the upper level of the townhouses.

6 In considering the matters raised by Mr Winnacott, I accept the conclusions that the proposed development was acceptable can be supported in this case.

While it is undesirable and I accept the concerns of Ms Becke and Ms Mullane are valid and in some ways unfortunate, the impacts are a direct result of the zoning of the property to allow the proposed development. I accept that all reasonable attempts have been made through the analysis of Mr Winnacott to reduce this impact.

7 I note that the impact of the building has been reduced through an overall reduction in height by 1 metre through the general sinking of the building further into the ground, the replacement of the pitched roofs with flat roofs and the maintenance of view corridors at the upper levels. While the views from the balconies and living areas will be largely lost, I accept that, considering the zoning of the site and the attempts made to minimise this impact, the view loss is not a reason that would warrant the refusal of the application.

8 The other significant issue was raised by Mr Henderson and related to the potential overlooking from the balconies that face his property. Mr Winnacott explained the measures he had suggested to overcome any privacy issues. These involve, at the lower level, proposed landscaping and a 1.8 m high fence to provide screening. The next level provides for bedrooms for each of the townhouses and while overlooking is a possibility from the windows facing Mr Henderson’s property, Mr Winnacott states that as they are used as bedrooms and are unlikely to have a high usage. The upper level contains an open deck and a loft area and Mr Winnacott suggested planter boxes that would keep any occupants of the upper level away from the edge and restrict any downward looking into Mr Henderson’s property.

9 I accept that the measures suggested by Mr Winnacott are a reasonable and practicable approach and will provide an acceptable level of privacy to Mr Henderson’s property.

10 For these reasons, the Orders of the Court, by consent, are:

1 The appeal is upheld.
2 Development application No. 0610/05 for the construction of five attached townhouses with basement car parking at 2 Fiddens Wharf Road, Killara is determined by the grant of development consent subject to the conditions in Annexure A.
3 The exhibits are returned with the exception of exhibits 1, 3,6 and B.

___________________

G T Brown
Commissioner of the Court
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