Xiang Rong Investments Pty Ltd v Ku-ring-gai Council

[2004] NSWLEC 409

Land and Environment Court

of New South Wales

CITATION:	Xiang Rong Investments Pty Ltd v Ku-ring-gai Council [2004] NSWLEC 409
PARTIES:	APPLICANT Xiang Rong Investments Pty Ltd RESPONDENT Ku-ring-gai Council
FILE NUMBER(S):	10426 of 2004
CORAM:	Hussey C
KEY ISSUES:	Development Application :- removal of old dwelling - construction of a new dwelling - carport - setbacks - streetscape
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	27/07/2004
EX TEMPORE JUDGMENT DATE :	07/27/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr S Kondilios, solicitor SOLICITORS Maddocks RESPONDENT Mr A Hudson, solicitor SOLICITORS Wilshire Webb

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

27 July 2004

10426 of 2004 Xiang Rong Investments Pty Ltd v
Ku-ring-gai Council

JUDGMENT

1 This is appeal No. 10426 of 2004 which was undertaken by an on-site hearing. The appeal is against council’s refusal of a development application involving the removal of an old dwelling and subsequent construction of a new dwelling at No. 68 Ridge Street, Gordon.

2 The proposed site forms part of an overall dual occupancy development, which was subject to a number of issues concerning heritage significance of the existing house and servicing. However, following negotiations between the parties, the heritage issue has been resolved and council does not oppose the demolition of the subject dwelling. I also note that council does not oppose the erection of a new replacement dwelling.

3 The main issue concerns the inclusion of a single carport in front of the proposed new dwelling. In particular, this relates to its proposed setback of approximately 5.7 m, which does not satisfy the setback control of about 12 m, to be consistent with the setback of the neighbouring houses. This setback control is contained in cl 4.7(g) of the Dual Occupancy Development Control Code. In respect of (g) it states that:

the location of carports and garages is to give consideration to existing trees, structures on adjacent sites, streetscape, visual character, heritage issues.

4. The design requirement and controls of garages then provides that garages:

should not be located forward of the established building line. Where it is not possible to provide parking behind the building line, only open sided carparking will be considered in the locations forward of the established building line …
and it goes on to say that the use of such parking is not favoured.

5 Insofar as this carport does not comply with the setback control, this is contained within the Code, which I have considered. But I note that its status would be diminished as compared to a more formal development control plan. Therefore I consider that reasonable discretion can be exercised on the application of the controls in this Code.

6 Accordingly, I note then that council’s main concerns with this non-compliance are the precedential effects and streetscape impacts. In this regard I give little weight to the precedential issue because the street contains a diversity of dwellings, carports at various setbacks, together with many mature gardens which effectively screen/filter the buildings. Therefore every application should be considered on its merits, in its local context. Having considered the evidence the observations on the view, I note that there is a an established camellia/sesanqua hedge along the western boundary of the property, which will effectively screen the proposal. I also note that the proposal incorporates extensive landscaping in the revised front yard and with careful attention to the species, I am satisfied that it can be consistent with the landscape/built form and streetscape in this immediate area.

7 In this regard, the proposed carport design is of an open, lightweight appearance with slender timber posts and metal roof. Taking into account the scale and exposure of the new dwelling to which council raises no objection, I am satisfied that the associated carport will result in minimal impact on the streetscape, providing it is finished in environmentally sensitive colours, which compliment the landscaping. I accept Mr Glendinnings’s opinion that this final detailing can be satisfactorily achieved with the conditions of consent.

8 Also as a circumstance of this case, I am informed that the respective parties planning consultants did confer and reached an agreement that the proposal was satisfactory for conditional consent. That conference report dealt with Issue 5 in the following manner:

“the amended carport is an improvement on the double carport previously proposed. Reducing the carport in width, together with a reduction in width of the car space and driveway allows for the planning of two Crepe Myrtle trees (one either side of the driveway) , which will soften and partly hide the carport from view from the street. The carport design is appropriate to the design of the dwelling and the open brickwork to the front of the carport will assist in allowing the house to be viewed under the carport. The landscaping proposed in the front yard will also assist in screening the carport from view from the street and adjoining park. The additional setback of the carport will allow a second car to be parked in the front of the carport and will assist in it being less dominant in the streetscape. This issue has been resolved by the amended plans.

9 Notwithstanding this I note that council still has put forward some concerns about this non-compliant setback. However, my conclusion is that even though the carport does not comply with the setback consideration in the Code nevertheless, I consider it can be satisfactorily integrated into this immediate streetscape and I do not consider there are any substantive grounds which warrant the rejection of this application. Therefore it can be granted conditional consent in accordance with the detailed conditions that have been discussed on site.

10 Accordingly the Court orders are:

The appeal is upheld.
Development consent is granted to Development Application 1320/03 D.D. for the demolition of an existing dwelling and construction of a new dwelling, and carport at 68 Ridge Street, Gordon, subject to the conditions in Annexure “A”.

________________

R Hussey
Commissioner of the Court
Nmc/rjs