Tai v Ku-ring-gai Council

[2005] NSWLEC 511

Land and Environment Court

of New South Wales

CITATION:

Tai v Ku-ring-gai Council [2005] NSWLEC 511

PARTIES:

APPLICANT
Keith Kwok Kei Tai

RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):

10567 of 2005

CORAM:

Tuor C

KEY ISSUES:

Development Consent :- s96 application to amend consent to permit carport to be constructed forward of the building line.
Impact on streetscape

LEGISLATION CITED:

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

DATES OF HEARING:

13/09/2005

EX TEMPORE JUDGMENT DATE:

09/13/2005

LEGAL REPRESENTATIVES:

APPLICANT
Litigant in Person

RESPONDENT
Mr P. Marincowitz, solicitor
of Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

13 September 2005

10567 of 2005 Keith Kwok Kei Tai v Ku-ring-gai Council

JUDGMENT

1 This is an appeal against Ku-ring-gai Council’s (council) refusal of a s 96 application to amend a development consent (DA668/2003) for alteration and additions to an existing house at 21 Merlin Street, Roseville (the site).

2 Council approved the development application on 13 December 2003 subject to conditions including the deletion of the proposed carport (condition 6) and that the breezeway be set back a minimum of 1 m from the southern boundary. (condition 7)

3 The s 96 application sought the deletion of conditions 6 and 7. However, the applicant no longer seeks the deletion of condition 7.

4 The key issue in this case is whether the proposed carport is integrated into the design of the house and has an acceptable impact on the streetscape.

5 Expert planning evidence has been provided by Mr A Minto for the applicant and Mr R Kinninmont for the council. Council’s engineer also provided advice on the proposed driveway levels.

6 The site is zoned residential 2(a) under Ku-ring-gai Planning Scheme Ordinance (KPSO). The proposal is permissible with consent. The Ku-ring-gai Residential Design Manual Development Control Plan 38 (DCP 38) is also relevant.

7 Section 5.1.3 of DCP 38 refers to front building setbacks, the assessment criteria states that:

development should be appropriately located on the site to:

· maintain streetscape character.

8 It specifies a minimum setback of 9 m and an average setback of 11 m for two storey developments on the low side of the street. The ground floor of the existing house is setback 7.6 m and the proposed carport has a setback of 1 m.

9 Section 5.5 deals with access and parking. Its objectives are relevantly:

To encourage the integrated design of vehicle access and functional carparking facilities to minimise adverse visual and environmental impacts in the streetscape.

10 Section 5.5.3 states that carports should not dominate the site and the streetscape. The design requirements include:

· locating parking at the rear of the site where rear access is available;

· integrating structures within the development.

11 The requirements recognise that:

Only open sided carports may be considered in front of the building line where it is not possible to provide parking behind the building line.

12 The parties agreed that it was now not possible to provide parking behind the building line due to the location of the existing house and the completion of the renovations.

13 However, in council’s opinion the alteration and additions to the exiting house are so extensive that it may have been possible to incorporate parking into the alterations if this had been considered when the condition was imposed. If the applicant did not wish to accept the condition, it would have been appropriate to appeal against its imposition prior to commencing the works and taking up the benefits of the consent.

14 I will not examine this issue but will deal with the merits of the application on the basis that it is now not possible to place the carport behind the building line. The key issue is whether proposal has an acceptable impact on the streetscape.

15 The existing streetscape is described in the Ku-ring-gai Character Study as being

located within an area characterised by single dwellings on single lots with the majority of construction occurring between the periods of 1920 to 1945. Merlin Street comprises of a relatively intact streetscape with some existing examples of carports and garages. The following are distinguishing features within the streetscape;

a) Consistent front setbacks generally partially screened;
b) Large proportion of open space mostly at the rear of the residence and mature established gardens;
c) Low brick, timber or herbaceous front boundary fences;
d) Driveway and single car accommodation at the rear and to the side of residence; and
e) Mature street trees and in many instances gridlines of mature native vegetation which relate to rear property boundaries and creek lines.

16 There are a couple of examples of carports forward of the building line on the high side of the street but these are still setback from the front boundary. Therefore carports forward of the building line in close proximity to the front boundary are not characteristic of the street. The proposed carport is set back only a metre from the boundary and, due to the slope of the land, will vary in its overall height from about 3.2 m at the street frontage to about 4.5 m to its rear. The house is located near the corner and the carport will be visible to cars and people approaching from the cross street.

17 The combined effect of the lack of setback, the height and the degree of visibility of the proposal together with there being no other similar examples mean that the carport is an element that is not characteristic of the streetscape and does not meet the assessment criteria for front setbacks or parking in DCP 38 and on this basis the application must fail.

Orders

18 The orders of the Court are:

1. The appeal is dismissed.

2. The s 96 application to delete conditions 6 & 7 of the Development Consent (DA668/2003) for 21 Merlin Street, Roseville, is refused.

3. The exhibits may be returned.

4. No order as to costs.

___________________

Annelise Tuor
Commissioner of the Court
ljr