Webster v Ku-ring-gai Municipal Council

[2004] NSWLEC 508

Land and Environment Court

of New South Wales

CITATION:

Webster v Ku-ring-gai Municipal Council [2004] NSWLEC 508

PARTIES:

APPLICANT
John Stanley & Pamela Evelyn Webster

RESPONDENT
Ku-ring-gai Municipal Council

FILE NUMBER(S):

10474 of 2004

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Detached Dual Occupancy - site suitability - height - bulk - privacy - landscaping - public interest

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
SEPP 53
SEPP 55
Ku-ring-gai Planning Scheme Ordinance

CASES CITED:

DATES OF HEARING:

07/09/2004

EX TEMPORE
JUDGMENT DATE :

09/07/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr S Kondilios, solicitor
SOLICITOR
Maddocks

RESPONDENT
Mr R Graham, solicitor
SOLICITOR
Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

7 September 2004

10474 of 2004 Webster JS & PE v Ku-ring-gai Municipal Council

JUDGMENT

1 This appeal was lodged against Council’s refusal of a Development Application for a detached dual occupancy development at 6 Park Avenue, Gordon.

2 Following, the view this morning the parties agreed that this matter can be completed by way of an on-site hearing (O.S.H.). There is a detailed Statement of Basic Facts, which describes the property being located on the corner of Park Avenue and Pearson Avenue and Burgoyne Lane, Gordon. It is an irregular shape and it has a total area 119.7 sq m. It has a 15.2 m wide frontage to Park Avenue and a depth of 60.36 m. At present there is an existing part 1/2 storey brick timber dwelling with tile roof, federation style bungalow on the site.

3 The property is zoned Residential 2(c) under the Ku-ring-gai Planning Scheme Ordinance and I understand it is within a draft urban conservation area. The application is subject to the provisions of the Ku-ring-gai Planning Scheme Ordinance, State Environment Planning Policy No. 53, SEPP No. 55, the Kur-ring-gai Dual Occupancy Code and Ku-ring-gai Development Control Plan No. 43, which deals with car parking.

4 The proposal is for a dual occupancy development comprising the erection of second dwelling at the rear of the existing property and also some alterations to the existing house involving the removal the rear portion and conversion back to a verandah area.

5 The new dwelling two storey has three bedrooms, study, living area and brick and tile construction.

6 It has a floor area of 232.56 m2 and a double garage off the lane. The existing dwelling with minor alterations will have floor space of 227 m2 giving an overall floor space ratio 0.49 to 1 for the total development.

7 For the appeal the parties agreed to the appointment of a Court appointed planning expert, Mr Ludvik. He carried out an extensive assessment of the proposal and referred to the previously mentioned planning controls and dealt with a number of issues that related to:

• a lack of privacy,
• adequacy of the site analysis,
• design,
• height, bulk and scale,
• visual impact of the new dwelling.
• the effect of the development on the streetscape,
• the safety concerns for the prospective residents of the new dwelling,
• adequacy of soft landscaping proposed,
• adequacy of proposed private open areas within the development,
• location of car parking facilities in relation to existing dwelling
• matters raised by the local residents.

8 I have read this detailed assessment of these issues, which was marked Exhibit 2, and there is no substantive challenge to any part of that report, although the Council sought clarification of certain aspects particularly the amenity of the internal open space areas for the new dwelling and also for the existing dwellings. However, I do not consider that to be of sufficient magnitude to warrant any change to Mr Ludvik’s ultimate conclusion. His conclusion is that the application demonstrates reasonable compliance with the prevailing controls and in coming to that conclusion he has considered some of the inconsistencies between the Council’s Development Control Code and SEPP 53. Accordingly he has reconciled these and has related them to the development standard or guidelines in AMCORD. So in the ultimate I accept his conclusion that the application merits conditional consent.

9 Notwithstanding this, I have considered the objections of the neighbours both in written form and oral evidence. The neighbours from No. 8 are concerned about loss of privacy and visual intrusion. However it seems with the clarification on the design detail, the loss of privacy is not of an unreasonable extent, taking into consideration that the windows in the upstairs portion of the building, can be conditioned to minimise overlooking from the family room and there are also privacy screens proposed.

10 With respect to the existing house, I think that the alteration to the rear verandah to shift the steps to go directly into it’s court yard and provide a privacy screen on the eastern elevation of the verandah, results in a reasonable interaction between the two houses, so that in the ultimate, I accept Mr Ludvic’s conclusion that there will not be unreasonable impact on this property.

11 One of the other concerns raised by other neighbours concerns the style of development. However the planning controls do propose some changes in the planning regime for this area. On the other side of Pearson Street, the land is being re-zoned to allow a much more extensive residential zoning. Whilst the re-zoning does not effect for subject property, nevertheless this property has the benefit of the savings clause which enables the application to be assessed on the basis undertaken by Mr Ludvic and again I accept his conclusion this proposal results in a reasonable transition between the proposed new zoning and the existing area.

12 In coming to my conclusion, and I won’t go through in detail all the aspects of Mr Ludvic’s assessment but, I consider he adopts well accepted planning principles in reaching his ultimate conclusion. His conclusion in respect of all the issues is that the proposed dual occupancy development will not have any undue or unreasonable impacts for the following reasons;

The proposed dual occupancy development will not have any undue or unreasonable affect on:
• the privacy adjoined by the resident surrounding properties; or
• the existing amenity and the environment character of this area in terms of the general character of development in this locality and the area streetscape.
The proposal represents satisfactory design response to the opportunities and constraints offered by the site and it’s setting.
An adequate and satisfactory level of soft landscaping is to be established to enable the development to be integrated with development in the area.

The proposal is likely to enhance the scenic and landscape quality of the site.

The quantity and quality of the private open space air is to be establish as reasonable in relation in their view to use by residents of the dwellings.

There are no reasons for the town planning perspective that would justify refusal of the application on the issues raised in these proceedings.

The application is suitable for approval subject to appropriate conditions.

13 Accordingly I accept this conclusion and the Court Orders are:

1. The appeal is upheld.

2. Development Consent is granted to DA 1582/03 for a dual occupancy development comprising of an erection of a detached dwelling at 6 Park Avenue, Gordon, subject to the conditions in Annexure A.

3. The exhibits are to be returned except for Exhibits 1, 2 and 6.
________________________
R Hussey
Commissioner of the Court
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