Development Applications for Dual Occupancy and Subdivisions Allowed by Land and Environment Court

The Court granted development consent for the construction of two-storey dwellings and subdivisions under SEPP 53 and KPSO, subject to conditions ensuring an attractive residential environment and adequate amenity for occupants and adjoining residents.

Land and [ADDRESS] of New South Wales

CITATION : [NAME] v Ku-ring-gai Council [2004] NSWLEC 730 APPLICANT [NAME] PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 11105, 11106, 11107 & 11108 of 2004 CORAM: [NAME] C. KEY ISSUES: Development Application :- Dual occupancy and subdivision Impact on residential amenity LEGISLATION CITED: State Environmental Planning Policy No 53 Ku-ring-gai Planning Scheme Ordinance CASES CITED: DATES OF HEARING: 16/12/2004 EX TEMPORE 12/16/2004

JUDGMENT DATE :

APPLICANT [NAME]

Solicitors [NAME]

LEGAL REPRESENTATIVES: RESPONDENT [NAME]

Solicitors [NAME]

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

[NAME] C

16 December 2004

11105 of 2004, 11106 of 2004, 11107 of 2004, 11108 of 2004 [NAME] v Ku-ring-gai Council

JUDGMENT

1 COMMISSIONER: This is four appeals against the deemed refusal by Ku-ring-gai Council (the council) of four development applications at [ADDRESS], Pymble being lot 1 DP 531941 (the site). 2 Appeal No. 11106 of 2004 (Stage 1 DA 1673/03) is to construct a two storey dwelling at the front of the site under the provisions of State Environmental Planning Policy No 53 (SEPP 53). 3 Appeal No. 11105 of 2004 (Stage 2 DA 1674/03) is to subdivide the site into two allotments under the provisions of Ku-ring-gai Planning Scheme Ordinance (KPSO): lot 1 with an area of 523sqm and lot 2 with an area of 1,113sqm. 4 Appeal No. 11107 of 2004 (Stage 3 DA 1675/03) is to demolish the existing house and construct two new two storey houses under the provisions of SEPP 53. 5 Appeal No. 11108 of 2004 (Stage 4 DA 57/04) is to further subdivide lot 2 into two allotments under the provisions of KPSO: Lot 2 with an area of 495sqm (exclusive of the common driveway) and lot 3 with an area of 618sqm. 6 The end result of each of these applications will be three two storey houses each on their own separate allotment. The key questions before the Court are whether the three houses and their sites will a contribute to an attractive residential environment with clear character and identity. b Provide adequate amenity for the occupants and for adjoining residents. 7 The site, its context, planning framework and the background to the applications is described in the Statement of Basic Facts. In summary the site is located at the corner of [ADDRESS] and [ADDRESS]. It is zoned residential 2C under KPSO. Dual Occupancy development is not permissible within this zone but the dual occupancy applications are made under the provisions of SEPP 53. Cl 58B(3)(c) of KPSO permits lots to be subdivided in the 2C zone into a minimum allotment of 929sqm. Cl 58B (5) permits smaller allotments for dwellings lawfully approved under SEPP 53. [ADDRESS] heard expert planning evidence from [NAME], the Court appointed expert. [NAME] addressed the 7 issues in the statement of Issues and amended plans were prepared by the applicant to address the concerns raised by [NAME]. These amended plans were re-notified to the residents. [NAME] was satisfied that the amended plans and suggested conditions addressed the issues and that the applications were acceptable. 9 The hearing was held on site and the Court also heard evidence from the following resident objectors: · [NAME], [ADDRESS] · [NAME], [ADDRESS] · [NAME], [ADDRESS] · [NAME], [ADDRESS] · [NAME], [ADDRESS] 10 In summary, the issues raised by council related to the amenity of the development itself, particularly the open space to dwelling one which faces [ADDRESS]. An acoustic fence is to be provided and the noise report indicates that the predicted noise levels in this area are satisfactory. In [NAME]'s opinion this open space also receives adequate solar access that complies with the minimum three hours in mid winter. 11 Concern was also raised in relation to the adequacy of open space to dwelling two, which faces [ADDRESS]. [NAME] was satisfied that as this open space is above street level that together with proposed screen hedge it will achieve appropriate privacy as well as solar access. 12 In relation to the appearance of dwelling two from [ADDRESS], [NAME] was satisfied that the amended levels, fence treatment and reduction in the width of the driveway would ensure a satisfactory relationship. 13 [NAME] also considered that the extent of cut and fill was appropriate. There was minimal fill and where this occurred the houses where single storey and therefore did not add to the bulk of the building. The cut assisted in reducing the height of the building, particularly dwelling two when viewed from the adjoining property to the south. 14 Council's submission was that the issues it had raised in the appeal had been satisfactorily dealt with by the amended plans and the conditions. It accepted [NAME]'s opinion. 15 The residents raised additional issues to those raised by council. These include general issues relating to loss of trees and adequacy of replacement landscaping, traffic generation and access to [ADDRESS] from [ADDRESS], and concerns with the visual impact of the proposal and it being out of character with the area. 16 In relation to trees, the landscape plan indicates that some trees are to be removed from the site, including two large trees that have recently fallen over. A significant Blackbutt tree on the southern boundary and some other trees along the western boundary are to be retained. Other canopy trees and shrubs are to be planted and the conditions require a minimum number of canopy trees and a further landscaping plan. The conditions also include appropriate measures to protect the Blackbutt tree and a condition requiring approval for removal of any trees on the site. I am satisfied that with these measures the site will maintain the leafy character of the area. 17 In relation to traffic the proposal will increase the traffic generated from 2 cars to 6 cars. Council did not raise this as an issue and there was no evidence before the Court that this increase in 4 cars would adversely impact on the capacity of [ADDRESS] or the [ADDRESS] intersection. 18 The issue of character of the area was dealt with by [NAME] and I am satisfied that the size of the dwellings is appropriate for their allotments and that together with the proposed landscaping they will be consistent with the character of the area of houses in landscaped settings. 19 [NAME], the adjoining owner to the north and [NAME], the adjoining owner to the south shared these concerns and also raised specific issues about the impact of the proposal on the amenity of their properties. 20 [NAME] main concern was the impact of the house on lot 3 on the privacy of his back garden. He considered that the house should not extend further than the rear of his house and that the vegetation along the boundary should not be removed and that a fence was not appropriate. 21 The part of the house that extends beyond his house is some 14m from the boundary and will be screened by the proposed vegetation and the fence. The trees to be removed are a small maple and magnolia tree. The proposed screening along the boundary together with the proposed canopy trees, the fence and the degree of separation will prevent any adverse privacy impacts. The fence is a 1.8m paling fence that is characteristic of back gardens. 22 [NAME] main concern related to the number of windows which face her property and the resultant loss of privacy as well as solar access to her upstairs bedrooms. 23 The windows along her boundary are either highlight windows or windows to bedrooms or bathrooms. Due to the change in level most of these windows will be screened by the boundary fence and the proposed landscaping. A condition has been imposed to ensure that the height of the boundary fence will prevent any overlooking for people walking along the side of her house and the terrace, kitchen window and living room doors of dwelling two and to maintain a minimum height of 1.8m from her ground level. I am satisfied that these measures will provide a level of privacy that is reasonable to expect in a low density residential area. 24 In relation to solar access, the shadow diagrams indicate that there will be a loss of sunlight to the ground floor garage windows at 9am in midwinter. The windows to the bedrooms on the upper level will not be affected. 25 I accept the evidence of [NAME] and find that that the proposal will contribute to an attractive residential environment with clear character and identity and provide adequate amenity for the occupants and for adjoining residents.

Orders

26 For the above reasons the Orders of the Court are: Appeal No. 11106 of 2004.

1. The appeal is upheld.

2. Development application (Stage 1 DA 1673/03) to construct a two storey dwelling under the provisions of SEPP 53 at lot 1 DP 531941 ([ADDRESS], Pymble) is determined by the grant of development consent subject to the conditions at Annexure "A".

3. The exhibits, except exhibits A, B, E, 1, 3 and 4, may be returned. Appeal No. 11105 of 2004.

1. The appeal is upheld.

2. Development application (Stage 2 DA 1674/03) to subdivide lot 1 DP 531941 ([ADDRESS], Pymble) into two allotments under the provisions of KPSO (lot 1 with an area of 523sqm and lot 2 with an area of 1113sqm) is determined by the grant of development consent subject to the conditions at Annexure "B".

3. The exhibits, except exhibits A, B, E, 1, 3 and 4, may be returned. Appeal No. 11107 of 2004.

1. The appeal is upheld.

2. Development application (Stage 3 DA 1675/03) to demolish the existing house and construct two new two storey houses under the provisions of SEPP 53 at lot 2 DP 531941 is determined by the grant of development consent subject to the conditions at Annexure "C".

3. The exhibits, except exhibits A, B, E,1, 3 and 4, may be returned.

Appeal No. 11108 of 2004.

1. The appeal is upheld.

2. Development application (Stage 4 DA 57/04) to subdivide lot 2 into two allotments under the provisions of KPSO (Lot 2 with an area of 495sqm (exclusive of the common driveway) and lot 3 with an area of 618sqm) is determined by the grant of development consent subject to the conditions at Annexure "D".

__________________ [NAME] Commissioner of Court

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