Stalley v Ku-ring-gai Council
[2004] NSWLEC 619
•10/29/2004
Land and Environment Court
of New South Wales
CITATION: Stalley v Ku-ring-gai Council [2004] NSWLEC 619 revised - 10/11/2004 PARTIES: APPLICANT
RESPONDENT
G F Stalley
Ku-ring-gai CouncilFILE NUMBER(S): 10752 of 2004 CORAM: Bly C KEY ISSUES: Development Application :- Detached dual occupancy - alterations and additions to existing dwelling - construction of detached single storey dwelling -solar access - amenity impacts LEGISLATION CITED: State Environmental Planning Policy No. 53 CASES CITED: DATES OF HEARING: 29/10/2004 EX TEMPORE
JUDGMENT DATE :10/29/2004 LEGAL REPRESENTATIVES: RESPONDENT
APPLICANT
Mr S Kondilios
SOLICITORS
Maddocks
Mr P Rigg, solicitor
SOLICITORS
Deacons
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESBly C
29 October 2004
JUDGMENT10752 of 2004 G F Stalley v Ku-ring-gai Council
1 This on-site Court hearing involves a development application for the construction of a detached dual occupancy development comprising alterations and additions to an existing dwelling (Dwelling A) and construction of a second detached single storey dwelling (Dwelling B).
2 Overall, the proposal will have a floor space ratio of 0.324:1 and a total built upon area of about 48%.
3 The trapezoidal shaped site comprises Lot 59 in DP 10472 and is known as 123 Pentecost Avenue Turramurra. It has a frontage to both Pentecost Avenue and Raglan Street, and has an area of about 1090 sq m. It has a moderate fall from north to south.
4 The site has established gardens, including several mature trees and is located in an area characterised by single dwellings of one and two storeys. There is a mix of architectural styles and periods within the streetscape.
5 The adjoining site to the west being 125 Pentecost Ave. contains a two-storey dwelling fronting Pentecost Avenue, and the site to the east being 3 Raglan St. contains a single storey dwelling fronting Raglan Street.
6 The proposal is permissible with development consent under State Environmental Planning Policy No 53 -- Metropolitan Residential Development. ("SEPP 53.")
7 The application was advertised and letters of objection were received from the two neighbouring properties.
8 On 28 August 2003 Commissioner Moore dealt with an appeal involving a development very much the same as what is before the Court today. He refused that appeal essentially because of a solar access problem to Building A. In his judgment he dealt with a number of other matters including tree loss and privacy.
9 Whilst the privacy issue was of some concern, it was not a fatal consideration nor was the loss of a significant English Oak tree on the site. The other matters, including tree loss, that were not of critical concern to Commissioner Moore should not be revisited in this case.
10 As for the solar access issue I heard advice from Mr Ludvik to the effect that as a result of the lowering of Building B and some relatively minor changes to Building A, that the requirements of AMCORD are now met. To ensure full solar access Mr Ludvik suggested that a Camellia tree be removed. This was the subject of considerable discussion on-site, the tree having aesthetic benefits for both the site and the neighbour. It was nevertheless agreed that this tree should be removed and replaced with a suitable species of tree in more appropriate locations to provide the aesthetic aspect sought and, at the same time facilitating an appropriate level of solar access.
11 I now accept that in terms of solar access there is no reason why the proposal should be rejected or modified
12 As mentioned earlier the neighbours on either side of the proposal objected to it for various reasons, but notwithstanding those objections, the council and the applicant came to the Court seeking orders that by consent approval be granted. Despite that, it is appropriate for the Court to give consideration to the concerns of the neighbours.
13 I note that Mr Rees was, due to illness, unable to be at the hearing to express his concerns. I have nevertheless read his letter and believe that I understand his objections. I have also read the letter of Mr Davies, the second objector and heard from him on-site. I also visited his property in a successful attempt to understand his concerns.
14 The concerns of both objectors, it seems to me, can be essentially described as amenity impacts involving loss of outlook, loss of privacy and noise impacts. I shall come back to those in a moment.
15 They were also more generally concerned at the density and style or perhaps character of this development in its wider context. In this regard and taking into account the thrust of SEPP 53, and the size of the site, the extent of built upon area and the quite low overall floor space ratio and also taking into account what Mr Ludvik explained in relation to streetscape, I do not accept that this is an issue fatal to the application. Indeed taking into account the size of the site, it seems to me that this development will sit quite comfortably in this locality.
16 As for the amenity impacts I referred to earlier, I have not been persuaded that those impacts are such as to warrant rejecting the application. This is something which Mr Ludvik carefully considered and I accept his advice. Matters of particular relevance to this conclusion include the applicant’s agreement to relevantly provide landscaping and appropriate boundary fencing. The landscaping plan which, whilst some vegetation is to be removed other vegetation will be retained. Finally I have taken into account in relation to privacy the now proposed location of windows in Building B and the use of the rooms which are associated with those windows.
17 It is therefore the decision of the Court that the appeal will, by consent, be upheld and conditional development consent granted in accordance with Exhibit 5 and subject to the conditions in Exhibit 4, noting that an additional condition in relation to fencing is yet to be formulated. I will retain Exhibits A, B, 2, 3, 4 and 5.
___________________
T A Bly
Commissioner of the Court
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