Holman v Ku-ring-gai C [2005] NSWLEC 461

Land and Environment Court of New South Wales

CITATION : Holman v Ku-ring-gai C [2005] NSWLEC 461

APPLICANT John Holman

PARTIES : RESPONDENT Ku-ring-gai Council

FILE NUMBER(S) : 10840-43 of 2005

CORAM: Hussey C

Development Application :- 4 separate development applications for dual occupancy and subdivision KEY ISSUES:

Environmental Planning and Assessment Act 1979 Ku-ring-gai Planning Scheme Ordinance LEGISLATION CITED: State Environmental Planning Policy 53 State Environmental Planning Policy 1

DATES OF HEARING: 08/06/05 EX TEMPORE JUDGMENT DATE : 06/08/2005

APPLICANT Mr G. McKee, solicitor of McKees Legal Solutions

LEGAL REPRESENTATIVES:

RESPONDENT Mr P. Marincowitz, solicitor of Phillips Fox

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hussey C

8 June 2004

10840 of 2004 John Holman v Ku-ring-gai Council 10841 of 2004 10842 of 2004 10843 of 2004

JUDGMENT 1 This appeal concerns four separate development applications for dual occupancy and subdivision at No. 67 Roland Avenue, Wahroonga.

2 The site is known as No. 67 Roland Avenue, Wahroonga, being Lot 1 in DP 369490, is located on the north-western side of Roland Avenue between Mildred Street and Berilda Avenue at Wahroonga. The site is zoned Residential "2C" and is surrounded by similarly zoned properties of single and two storey construction. The site has frontage of 29.26 m, a northern boundary depth of 83.515 m, southern boundary depth of 82.875 m, rear boundary of 26.973 m and an area of 2219 sq m.

3 The site contains an existing single storey cement rendered dwelling with a tile roof, separate garage, swimming pool and garden shed. The existing dwelling is located in the centre of the lot. There are numerous trees on the site. The land slopes in a westerly direction towards the rear, with a fall of approximately 6 m. The site has been categorised in Council's Visual Character Study as being in an area that was developed between 1945 and 1968.

4 The four stages of development are detailed in the Statement of Basic Facts and comprise: Stage 1; The construction of the new 2-storey dwelling, in front of the existing dwelling. Stage 2; The creation of 2 lots, with each lot created from the Stage 1 proposal. The frontage lot is to have an area of 697 sq m. The rear, hatched-shaped lot contains the existing/modified house and has an area 1549 sq m. Stage 3; The construction of an additional 2 storey dwelling to the west of the existing swimming pool within the new lot created in the Stage 2 subdivision. Stage 4; Proposes a 2 lots subdivision for the dwelling constructed in Stage 3. The lot closest to the street is to have an area of approximately 100 sq m.

5 A number of issues were raised initially but conferencing between the parties has reduced those issues. The threshold issue is the drainage matter, which the parties agreed to the appointment of Mr D. Bewsher as the Court appointed expert for drainage matters. He prepared a detailed report and analysed 3 options, namely options (a) (b) and (c). He discounted options (a) and (b) as not feasible or viable and accepted that option (c) would reasonably address the drainage issues with this proposal. Consequently, the council has accepted that this option could be implemented by way of a deferred commencement condition, which requires detailed engineering investigation and design work to be undertaken, prior to the remaining consent conditions operating.

6 Option (c) involves a downstream outlet pipe over the adjoining property owned by Dr Pocock. He had the opportunity of expressing his concerns, but following clarification of the engineering details, he seemed more receptive to the proposal. Accordingly, I consider that the deferred commencement approach is reasonable as it allows for further detailed investigations and negotiation between the neighbours to establish an acceptable drainage outlet solution. If a satisfactory agreement cannot be obtained, I understand there are other possible remedies to this issue. Therefore I do not consider it reasonable to refuse the application, because agreed conditions of consent reasonably address this issue, according to Mr Bewsher's evidence, which I rely on.

7 I have also considered Dr Pococks other concerns about privacy intrusions from the new dwellings. However I am satisfied that the separation distance to the existing house is well clear of normally accepted separation standards (AMCORD). On this basis, and I don't think that the proposal will cause undue amenity impacts, so as to warrant its refusal.

8 I have also had the opportunity of considering the impacts to Mr Sheridan's property. He expressed concern about overlooking opportunities from the upper level windows, noise from cars using the driveway and loss of privacy and overlooking opportunities onto his terrace area. However, measurements taken on the site indicate that the minimum separation distance is in excess of 21 m. Also any overlooking is from an upstairs bedroom window, that the applicant has agreed to amend to a hi-lite window so as to reduce overlooking. In these circumstances, I am satisfied that the amendments to the window treatment, coupled with the separation distance, results in a reasonable level of privacy in this situation, as required by SEPP 53. I have also had the opportunity of considering the impacts to Mr Sheridan's property. He expressed concern about overlooking opportunities from the upper level windows, noise from cars using the driveway and loss of privacy and overlooking opportunities onto his terrace area. However, measurements taken on the site indicate that the minimum separation distance is in excess of 21 m. Also any overlooking is from an upstairs bedroom window, that the applicant has agreed to amend to a hi-lite window so as to reduce overlooking. In these circumstances, I am satisfied that the amendments to the window treatment, coupled with the separation distance, results in a reasonable level of privacy in this situation, as required by SEPP 53.

9 With respect to Mr Sheridan's concerns about noise from the driveway, I am satisfied that the acoustic impacts will be reasonably addressed by the proposed 2 m boundary fence and conditions can be imposed to cover this concern.

10 Objections were also made by Mr Weekly, a neighbour from the adjoining front property. His concerns are about privacy impacts, but the location of the new dwelling in the front area has adequate separation distances and with the proposed 1.8 m boundary fence, I consider this is reasonable, in this locational context. He also lodged an objection to the front setback, but on checking, I note that it complies with council's controls. As there is comfortable compliance, accordingly I do not consider it would be reasonable to refuse the application on the basis of these objections.

11 In summary, the council is satisfied that the application generally meets it's requirements and there is no longer sufficient grounds to refuse the application. I note that there is SEPP 1 objection that has been prepared by Glenndinning Minto and Association and that deals with the maximum built upon area of allotment in the Ku-ring-gai Planning Scheme Ordinance . I have considered that objection and I note that there has been no complaint or objections put by council against it. On the basis that council accepts the objection is well founded and therefore strict adherence to that development standard is unnecessary and unreasonable in these circumstances, I accept this conclusion on the basis of the evidence put before the Court.

12 In summary then, I consider it in appropriate to make an interim finding, which is that conditional development consent should be granted to each of these individual applications. But there needs to be some tidying up work and minor detailing on the plans, together with some adjustment of the separate conditions of consent to reflect the matters discussed at the hearing. So I adjourn the matter to review the final plans and the conditions of consent, as discussed by the parties, to enable further consideration to be given to the final orders.

___________________ R Hussey Commissioner of the Court ljr

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