Steiner v Ku-ring-gai Council

[2005] NSWLEC 762

Land and Environment Court

of New South Wales

CITATION:

Steiner v Ku-ring-gai Council [2005] NSWLEC 762

PARTIES:

APPLICANTS
Andrew and Joy Steiner

RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):

10788 to 10793 of 2005

CORAM:

Moore C

KEY ISSUES:

Development Application - Dual Occupancy - Subdivision :-
Multiple sequential proposals
.

LEGISLATION CITED:

State Environmental Planning Policy 53
Ku-ring-gai Planning Scheme Ordinance
.

DATES OF HEARING:

16 December 2005

EX TEMPORE JUDGMENT DATE:

12/16/2005

LEGAL REPRESENTATIVES:

APPLICANTS
Mr J Hones, solicitor
Hones Lawyers

RESPONDENT
Mr A Hudson, solicitor
Wilshire Webb

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C

16 December 2005

10788-93 of 2005 Andrew and Joy Steiner v Ku-ring-gai Council

JUDGMENT
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in these appeals will be the grant of development consents subject to detailed conditions. These conditions are not reproduced as part of this decision but will be available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

1 Commissioner: These are appeals pursuant to s 97 of the Environmental Planning and Assessment Act 1979 concerning proposed sequential multiple subdivision and detached dual occupancies at 79-81 Killeaton Street, St Ives (the site). The site is Lot 1 DP 224974 and is located on the northern side of Killeaton Street between Mona Vale Road and Kenthurst Road. It has an area of 2925 square metres with a frontage slightly in excess of 54 m to Killeaton Street. The site is, to all intents and purposes for these appeals, to be considered square.

2 It is proposed by these applications that the final effect will be that there will be six separate dwellings erected on the site, each one of which will be on its own allotment – with a number of reciprocal rights of way for the purposes of access.

3 There is presently erected on the site a two-storey brick and tile dwelling, tennis court, swimming pool and some sheds; all of these are to be demolished as part of the proposal.

4 The proposal will straddle the currently located council trunk stormwater drain which runs through the site. It is proposed as part of the consent that the applicants will be required to reconstruct and reconfigure that stormwater drain. It was one of the matters of concern in the proceedings to one of the residents that that redesign would be adequate for the protection of her family’s property.

5 The matters were originally brought by way of appeal against deemed refusals. The applications were subsequently the subject of an actual refusal by the council on 23 August 2005.

6 The proposal would not be permitted pursuant to the Ku-Ring-Gai Planning Scheme Ordinance (the KPSO); however the existence of State Environmental Planning Policy No. 53 (SEPP 53), which is both over-riding and facultative and which now only applies to this council, permits such dual occupancy developments.

7 SEPP 53 provides that it does not facilitate the subdivision of land, merely the erection of dual occupancy and developments on allotments that exist. As a consequence, the KPSO continues to apply to the proposed subdivisions.

8 I accept, based on matters to which I was taken by Mr Hones, solicitor for the applicant, that I should treat the proposed first subdivision, dividing the present site into two allotments, as creating, for the purposes of SEPP 53 two allotments, thus permitting the first dual occupancy development elements.

9 I raised with the representatives of the parties my concern that the subsequent subdivisions needed to be contingent on certain works to satisfy the provisions of cl 58B(5) of the KPSO which permits subdivisions (or at least does not stand in the way of subdivisions) of dual occupancies pursuant to SEPP 53 provided that there are lawful dwelling houses on those allotments.

10 A process has been agreed between the representatives of the parties that there will be an acceptable degree of construction, to the satisfaction of the council, before the second and third sequential stages in the proposal can commence.

11 This will be dealt with by way of deferred commencement conditions in the relevant staged consents. The form and general context of the wording of those has been agreed by the parties during the proceedings this afternoon.

12 The totality of the consequences of all the foregoing is that the proposal is permissible and that there are no major matters standing in the way, either procedurally or on the merits of the proposal, of it being granted the various consents which are sought. Indeed, the council now seeks to proceed by way of consent orders on the revised structure arising out of this afternoon’s proceedings.

13 I attended the site this morning in company with the parties, their advisers and their legal representatives, and had the opportunity of inspecting the premises and a number of surrounding premises. I also saw and heard the objections of a number of neighbours. I should, for the purposes of this determination, deal in turn with each of those to the extent that they are capable of being dealt with this afternoon.

14 The first matter I turn to is the concerns put to me by Ms Giblin, a resident of 7 Kenthurst Road, concerning the dwelling proposed to be erected at the rear of the site closest to her property, dwelling 5.

15 Her concerns arose with respect to what she regarded as “unacceptable overlooking opportunities” from the first floor elements of this proposed dwelling to her bedroom window on the upstairs rear of her property, and her living room window on the downstairs southern end of the ground floor of her property.

16 I do not have a survey plan which shows the distance between those windows and the locations on her property.

17 It is sufficient, however, that I note the following:

• First, there is a separation between the boundary fence between the two properties of the width of the tennis court on her property, plus a substantial element of her rear garden, at least of some significant width in addition to the tennis court, (although I am unable to ascertain what distance that might be);
• Second, there is a separation of some further 4 m or so from the windows of the first floor of dwelling 5 from the property boundary; and
• Third, the element to be constructed at the relevant point on dwelling 5 is a bedroom and only that bedroom would have windows at that level facing in the general direction of her house.

18 I am satisfied on any reasonable consideration of the separation distances in a suburban area, and having regard to what are generally considered the appropriate acceptable distances for privacy under standards established by AMCORD, that there will be a satisfactory degree of separation between the two dwellings.

19 As a consequence, there is no privacy concern upon which I could require amendment to, or removal of, the upper level of dwelling 5. This is reinforced by the fact that the overlooking occurs from bedroom windows and not from heavily trafficked living or entertaining areas.

20 For those reasons I am unable to require any modification of the development in response to those concerns.

21 The next residence which I attended is that of Mr and Mrs Smelt at 4/1 Kenthurst Road - that is the front lower level development in a retirement complex, presumably built under the now replaced State Environmental Planning Policy 5 for the construction of dwellings for persons over the age of 55 or for disabled persons.

22 The matters which were of concern to them were three;

• First, overlooking of their private open space, which is on the side adjacent to the development;
• Second, questions of noise from the pathway down the side; and
• Third, solar access.

23 The question of solar access was explained on-site by taking them to the solar impact and shadow diagrams of the revised plans which show that there will be no overshadowing, after 9 am, at the relevant date in June on their private open space from the proposed development.

24 I am satisfied, and I understood that they were, that there is no solar access impact on their dwelling which would warrant modification, let alone refusal.

25 With respect to privacy, during the course of my inspection of the site and in consideration of the plans, I suggested to the applicants that the lower two windows of the stairway to the upper level of dwelling 1 should be of obscure glazing in order to ensure that there was no overlooking into the private open space of the Smelts from this heavily trafficked area. The applicants readily agreed to a condition to that effect. I am satisfied that there are, therefore, no privacy issues arising.

26 With respect to the pathway down the side, I am satisfied that it is appropriate to have a pathway in that vicinity for undertaking servicing requirements to the dwelling and to its landscaping.

27 There is no opportunity for persons other than those accessing that dwelling to use that pathway. It cannot be used for accessing dwelling 5 or any other part of the development.

28 The planting proposed along this pathway - that is Lomandra longifolia tanika (which will grow to a approximately half a metre) - is a spikey access-discouraging plant. Thus it is likely that persons accessing the pathway will be deterred from going close to the Smelts’ fence.

29 In addition, there is significant landscaping along that boundary which will act to protect their privacy. I am satisfied that all reasonable steps have been taken to address these concerns.

30 I was also addressed on behalf of the owners of 6/1 Kenthurst Road, that is the upper level front dwelling immediately above the Smelts. A number of matters were put to me.

31 The first is that there would be overshadowing. As I explained on the site, that is simply an absurd proposition, as if there is no relevant overshadowing of the downstairs dwelling there can hardly be any relevant overshadowing of a dwelling immediately above it. As a consequence, I do not have any further regard to that concern.

32 The second raised what is described in a written submission as the “illegal procedure”. I am satisfied that that which is proposed, being a sequential development subject to a number of deferred commencement conditions, is lawful. If the proprietors of that unit come, upon proper advice, to a differing view and wish to challenge any consent that arises from these proceedings, there are appropriate statutory provisions (in a different class of proceedings in this Court) to have that determined by a judicial member of the Court. I am satisfied that I am presently involved in a proper exercise of the jurisdiction of the Court.

33 Third, there were concerns as to the loss of privacy from the bedrooms and living room of the upper level of 6/1 Kenthurst Road. The setbacks at the upper level on 1 Kenthurst Road are approximately 4 m from the relevant boundary and are 4.5 m at the upper setback level in proposed dwelling 1 from that boundary.

34 Again, in conformity with what are considered appropriate setbacks between bedrooms in one dwelling - that being what is proposed on the subject development - and bedrooms in another, that is an appropriate degree of separation.

35 However, the applicants were also prepared to accept a condition requiring that the upper level of the staircase glazing in dwelling 1 to be obscure glazing, in order to obviate the likelihood of looking from the staircase across to the bedrooms of the adjacent dwelling. I am satisfied that the necessity for that is merely marginal and simply adds a minor refinement to a position that would otherwise not be a basis for refusal.

36 I am satisfied that the fourth issue, that is the bulk and scale of the proposed dwelling, does not require any consideration as it is, in its context, an acceptable design.

37 The next family who raised objections are the Doyles who live at 83 Killeaton Street, a house accessed by a battle-axe handle and located to the rear of the site.

38 A number of matters relating to overshadowing, possible privacy impacts and vegetation loss and replacement were dealt with during the course of the evidence on-site given by Mrs Doyle, and I am satisfied that each of those was adequately addressed by the applicants' advisors during those discussions.

39 Mrs Doyle also expressed particular concern at the possible impact of the development on stormwater run-off onto her property, her property being somewhat lower, save in the area of her clothes line, to the site.

40 A number of ameliorative measures for stormwater collection and discharge are included in the plans that are before me at the present time.

41 I have stormwater concept plans, together with the architectural plans, which show the redesign of the proposed stormwater system, and its replacement with a much more integrated stormwater collection system together with roof water catchment and re-use systems in the development than in the present development on the site, where there appeared to be little or no collection of rain water.

42 However, I note particularly that in the first of the proposed consents a number of conditions are contained in Sch A dealing with further detailed stormwater design documentation.

43 Given that a consequence of this afternoon’s proceedings is going to require further consideration of the proposal by me, at least in a limited extent, it is appropriate that I note those provisions and that finalised terms of conditions are to be provided to, amongst others, Dr and Mrs Doyle, and that the stormwater concept plans and any further plans will be available for their inspection at the council.

44 Given that there is to be a further stage to the proceedings, if they wish to be heard further on that point after any further consideration they give to the stormwater conditions and plans, an opportunity will be afforded for that purpose.

45 I also heard a brief submission from Ms Carpenter, who is the resident of 89 Killeaton Street, who simply put to me the very basic proposition that 89 Killeaton Street is a heritage item and nobody has addressed the heritage significance of that item and the impact, if any, of the proposed development upon it.

46 It is clear from my consideration of Sch 7 Pt 2 of the KPSO, that 89 Killeaton Street, St Ives, is in fact listed by the council as an individual item of heritage.

47 Clause 61E of the KPSO provides as follows:

“The Council shall not grant consent to an application to carry out development on land in the vicinity of a heritage item unless it has made an assessment of the effect of the carrying out of it that that development will have on the heritage significance of the item and its setting.”

48 It is conceded by Mr Hudson, solicitor for the council, that there has been no such assessment.

49 I am therefore precluded from granting any consent until such an assessment has been made, and I have considered it.

50 Given the fact that there will necessarily be a delay in finalising the matter as a consequence of providing the revised conditions and orders to the objectors, that does not need delay finalisation of the proceedings, provided a copy of that assessment is made available to Ms Carpenter and she is provided with the opportunity to make further submissions and, if necessary, be heard by me on any such submissions that she might make.

51 The consequence of the foregoing is that the orders of the Court will be that:

1. The appeals will be upheld;
2. The appropriate development consents will be granted, provided I have given the consideration required by cl 61E of the KPSO concerning 89 Killeaton Street, St Ives and provided I am satisfied that there is no heritage impact warranting refusal (and not beforehand) ; and
3. Appropriate revised conditions will attach to each of those consents.

52 The directions of the Court, therefore, are:

1. The applicants are to file and serve, by close of business on 6 January 2006, a heritage assessment as required by cl 61E of the KPSO;
2. The respondent is to provide Mrs Carpenter at 89 Killeaton Street, by close of business on 11 January 2006, with a copy of the heritage assessment required by cl 61E of the KPSO;
3. The respondent is to file and serve any statement of evidence in reply to the heritage assessment required by cl 61E of the KPSO by close of business on 13 January 2006;
4. The respondent is to file and serve, by close of business on 22 December 2005, the revised consent orders and conditions;
5. The respondent is to provide the revised consent orders and conditions and notification of the further hearing date to the objectors by letter posted by 22 December 2005;
6. Liberty to approach the Registrar immediately for further 1 hour hearing date after 17 January 2006; and
7. Liberty to relist before Moore C at 9am on two days notice in week commencing 3 January 2006.

Tim Moore
Commissioner of the Court