Toon v Ku-ring-gai Council - [2004] NSWLEC 173

Land and Environment Court

of New South Wales

CITATION: Toon v Ku-ring-gai Council [2004] NSWLEC 173

PARTIES:
APPLICANT
John Toon
RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S): 11563 of 2003

CORAM: Cowdroy J

KEY ISSUES: Appeal :- SEPP 5 development - effect of draft Local Environment Plan - heritage issues.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 4, s 79C
Ku-ring-gai Planning Scheme Ordinance
State Environmental Planning Policy No. 1 - Development Standards
State Environmental Planning Policy No.5 - Housing for Older Persons or Persons with a Disability, cl 3, cl 4, cl 5, cl 10, cl 12, cl 13, cl 13A, cl 19, cl 25
State Environmental Planning Policy (Seniors Living) 2004, cl 6

CASES CITED: Walker v North Sydney Council (2000) 110 LGERA 397;
Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46

DATES OF HEARING: 31/03/2004; 01/04/2004

DATE OF JUDGMENT: 04/30/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr P. Tomasetti (Barrister)
SOLICITORS
Taylor Kelso
RESPONDENT
Mr P. Rigg (Solicitor)
SOLICITORS
Deacons

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

11563 of 2003

Cowdroy J

30 April 2004

John Toon

Applicant

Ku-ring-gai Council

Respondent

Judgment

Introduction

1 This is an appeal against the refusal of Development Application 165/03 by Ku-ring-gai Council (“the council”) for the demolition of an existing building and the erection of a development for older people or people with a disability at 50 Pentecost Avenue, Pymble (“the subject site”).

2 A view of the subject site, some adjoining properties and the general area was undertaken on the morning of the first day of hearing in the company of representatives from both parties. With the agreement of the parties, a number of local residents provided their evidence at this time.

3 For the reasons set out in the judgment I have concluded that the appeal should be upheld and development consent granted subject to conditions.

4 I record I was assisted by Commissioner Brown in the appeal.

Subject site and surrounding area

5 The subject site is identified as lot B in DP 337907. It is rectangular in shape with a frontage to Pentecost Avenue and a rear boundary of 32.005 m and side boundaries of 53.525 m, giving a total area of 1713.5 sq m. It has a moderate fall of 5.3 m from the south-east corner to the north-west corner at Pentecost Avenue.

6 A large two-storey dwelling, dating from 1938 is located on the subject site and is setback some 15 to 16 m from the Pentecost Avenue boundary. A timber garage/shed is located in the south east corner of the rear yard with access along the western boundary of the site. The subject site contains landscaped gardens and a number of large trees.

7 The subject site is located within a residential area with a mixture of housing types consisting mainly of large detached dwellings and more recent modern developments of housing for older people or people with a disability. Recent developments for older people or people with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] NSWLEC 173
Decision Date: 04/30/2004

CaseChat Overview and Summary

This appeal concerns the refusal by Ku-ring-gai Council to grant development consent for the demolition of an existing building and the erection of a development for older people or people with a disability at 50 Pentecost Avenue, Pymble. The applicant, John Toon, appeals against the decision. The key issues for the court to determine are whether the existing dwelling should be demolished because of its heritage significance, whether the proposed development unacceptably impacts on existing vegetation, whether the proposed development will maintain neighbourhood amenity and streetscape character, whether the proposal provides adequate deep soil planting, and whether the proposed garbage storage facility is suitable. The applicant submits that the draft Local Environment Plan is not a relevant consideration to the assessment of a development application for SEPP 5 development. The council submits that the court is entitled to consider the provisions of the draft LEP and that the making of the LEP is imminent. The court holds that the draft LEP is not a consideration relevant to the court's assessment of the development application. The court finds that the proposed development has given adequate regard to neighbourhood amenity and streetscape character, that the proposal is acceptable when viewed within the streetscapes and responds adequately to the landscape quality of locality, and that the proposal achieves a suitable balance between the two competing priorities. The court also finds that the proposed development has given sufficient regard to the question of visual privacy and that the proposal is acceptable. The court finds that the proposal to be acceptable and that the SEPP 1 objection is well founded. The court makes the following orders: development application No 165/03 for the demolition of existing structures and construction of a State Environmental Planning Policy No.5 - Housing for Older Persons or Persons with a Disability development consisting of six (6) units and basement carparking for Lot B in DP 337907, 50 Pentecost Avenue, Pymble be approved for a period of 5 years, subject to the conditions annexed as Annexure “A”; and the exhibits except exhibit “A” be returned.

Orders