Patterson and Leppinus v Ku-ring-gai Council [2005] NSWLEC 668

Land and Environment Court of New South Wales

CITATION : Patterson and Leppinus v Ku-ring-gai Council [2005] NSWLEC 668

APPLICANT David and Renate Patterson and Lynne Leppinus

PARTIES : RESPONDENT Ku-ring-gai Council

FILE NUMBER(S) : 10258 of 2005

CORAM: Bly C

KEY ISSUES: Development Application :- Draft conservation area - heritage significance - streetscape - site landscaping - landscaping bond - residential amenity - accessibility.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

Falcomata v Ku-ring-gai Council (No. 2) [2005] NSWLEC 459 ; CASES CITED: Allen & Hawkes v Ku-ring-gai Council [2005] NSWLEC 227; Newbury District Council v Secretary of State for the Environment [1981] AC 578

DATES OF HEARING: 26/10/2005 EX TEMPORE JUDGMENT DATE : 10/26/2005

APPLICANT Mr S Kondilios, solicitor SOLICITORS Maddocks LEGAL REPRESENTATIVES: RESPONDENT Mr P Marincowitz, solicitor SOLICITORS Phillips Fox

JUDGMENT: - 5 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Bly C

26 October 2005

10258 of 2005 David & Renate Patterson and Lynne Leppinus v Ku-ring-gai Council

JUDGMENT This decision was given extemporaneously on site. It has been revised and edited prior to publication.

1 This appeal relates to development application No 1273/04 which is for the demolition of an existing dwelling and the construction of two attached dwellings pursuant to State Environmental Planning Policy (Seniors Living) ("SEPP - SL") at 71 Ku-ring-gai Avenue, Turramurra.

2 The rectangular shaped site comprises Lot A in DP 338548 and has an area of 1113 m2.

3 The existing dwelling on the site was designed by the late F Glynn Gillings, an important architect, in the 1940's. The dwelling is not heritage listed and the heritage experts were not concerned at its demolition.

4 The site is located within a draft Urban Conservation Area as proposed by the National Trust. The locality includes many two-storey mansions dating from 1890 and set within well established gardens. Streetscapes are characterised by quality fences and street plantings.

5 Apart from SEPP - SL the site is also subject to the provisions of the Ku ring gai Planning Scheme Ordinance wherein it is zoned Residential 2(c2).

6 The application was advertised and some 17 objections were received. 7 To assist the Court in dealing with this application, evidence and materials were provided by: · Mr R Staas, a heritage consultant, § Mr I Glendinning, a town planning consultant, § Ms K Lithgow, a council town planner, and § Ms J Hill, the Court-appointed heritage consultant. 8 I also heard from an objector Mrs D Patterson of 69 Ku-ring-gai Avenue. Whilst on site the experts provided additional explanations of their reports in the context of their particular areas of expertise. The on-site hearing included an inspection of the site and its immediate environs. 9 The Statement of Issues makes reference to the following issues: · The heritage significance of the area including the inclusion of the site within a conservation area identified by the National Trust, · The heritage significance of the dwelling to be demolished, · Streetscape and visual impacts, · Bulk and scale of the proposed building, · Site landscaping, · Impacts on the amenity of neighbours, · Accessibility, · Stormwater drainage and · Issues raised by objectors. 10 In relation to accessibility, a report by Mr M Relf, an access consultant was provided for the assistance of the Court. Stormwater drainage plans were also provided. 11 As already noted the council is now satisfied that all of the issues, including the matters raised by the objectors, have been resolved as a result of: the provision of further evidence; changes to the design; and conditions of consent that have been agreed to by the applicant. 12 I have now considered all of the materials provided in relation to the identified issues and am now satisfied that none of these remains unresolved or unsatisfied and I have therefore decided to grant conditional development consent as sought. I would particularly note that the heritage experts were satisfied that the proposed design would be appropriate in the draft Urban conservation area. This consideration also includes the objections of the residents and I am satisfied that the matters which have been raised are matters which are satisfactorily dealt with by the in the experts' reports. 13 The only condition of consent that was opposed is Condition 49, which requires the provision of a cash bond or bank guarantee of $4,000. Mr Marincowitz pressed the condition and took me to a number of decisions of the Court in support, suggesting that not only does the Court have the power to impose such a condition but that it would be appropriate in the circumstances of this case. 14 The condition seeks to provide a mechanism whereby the amount sought as a bond could, if necessary, be utilised to recompense work that might be carried out by the council as a consequence of non-compliance with the landscape conditions. Mr Marincowitz submitted that this work could be done pursuant to s 121ZJ(1) of the Environmental Planning and Assessment Act 1979 ("the Act"). 15 It is clear that should the landscape works not be carried out in accordance with the conditions of consent s 121ZJ(1) of the Act could be utilised (subject to compliance with the various provisions of that section) to enable council to enter the site and carry out landscaping works. 16 Mr Kondilios disagreed with the majority of the submissions made on behalf of the council. He observed that an on-site hearing is not an appropriate circumstance for the Court to consider lengthy argument in relation to cases relevant to this matter. Despite this to I have taken the time to read the relevant parts of Falcomata v Ku-ring-gai Council (No. 2) [2005] NSWLEC 459 and Allen & Hawkes v Ku-ring-gai Council [2005] NSWLEC 227 and I am able to conclude that the principal position adopted by Senior Commissioner Roseth and Commissioner Moore should not be disturbed. 17 Senior Commissioner Roseth was concerned about how the bond monies might be managed by the council and Mr Marincowitz explained how the proposed condition was responsive to this. However I do not think that this is to the point. 18 In my view and consistent with the essence of what the Senior Commissioner said I am not satisfied that the bond would be consistent with the tests referred to in Newbury District Council v Secretary of State for the Environment [1981] AC 578 at 599. Clearly landscaping is a planning purpose and landscaping is an important part of this (and indeed most) developments and I understand Council's concerns in relation to non-compliances with landscape conditions. However I do not accept that a bond, even though it is associated with the planning purpose (of landscaping), is a planning purpose and I would therefore delete the condition from the consent. 19 The orders of the Court will be that: 1. The appeal is upheld. 2. Development Application No. 1273/04 for the demolition of the existing dwelling house and the construction of two attached dwellings as a State Environmental Planning Policy - Seniors Living development at 71 Ku-ring-gai Avenue, Turramurra, is determined by the granting of development consent subject to the conditions in Annexure A hereto. 3. Exhibits 1, A, B and J are retained. ___________________ T A Bly Commissioner of the Court rjs

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