Simon v Ku-ring-gai Municipal Council [2004] NSWLEC 523

Land and Environment Court of New South Wales

CITATION : Simon v Ku-ring-gai Municipal Council [2004] NSWLEC 523 APPLICANT Frances Simon PARTIES : RESPONDENT Kur-ring-gai Municipal Council FILE NUMBER(S) : 10826 of 2004 CORAM: Murrell C Development Application :- A dual occupancy on property known as 32 Duff Street KEY ISSUES: Turramarra

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: SEPP 53 Dual Occupancy Ku-ring-gail Council LEP 1988 CASES CITED: DATES OF HEARING: 14/09/2004 EX TEMPORE 09/14/2004 JUDGMENT DATE :

APPLICANT Mr J Hones, solicitor SOLICITOR Hones Lawyers

LEGAL REPRESENTATIVES: RESPONDENT Mr R Graham, solicitor SOLICITOR Abbott Tout

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Murrell C

14 September 2004

10826 of 2004 Frances Simon v Ku-ring-gai Council

JUDGMENT 1 This is a verbal judgment for an on-site hearing of an appeal under s 97 of the Environmental Planning and Assessment Act against council's refusal of a development application for a dual occupancy on the property known as 32B Duff Street, Turramurra. The subject site enjoys the benefit of street access at the front and rear boundaries. The application is submitted under SEPP 53 - 'Dual Occupancy in the Sydney Region'. The application is for a dwelling house only to be constructed at the rear of the existing dwelling at 32B Duff Street. The dwelling is adjacent to Cornwall Avenue and the property therefore has the benefit of an access, vehicular and pedestrian access from Cornwall Avenue. 2 By way of description the site is one that can be generally described as very leafy environment typical of the area with significant trees. It is also noted that Cornwall Avenue narrows considerably in the vicinity of the subject site, such that the pavement is narrow as well as there being no verge or footpath owned by council and the subject property has a boundary right to the street. A condition of the development is that there be a roll back curve constructed in front of the dwelling on Cornwall Avenue where vehicular access would be gained to the property. 3 In considering this matter and I have had regard to the assessment report of Mr Stewart and a subsequent report of council officers where it was recommended that the proposal be refused because of the reduced setback of the garage to Cornwall Avenue. I have also had the benefit of Mr Glendinnings's report and the view today has allowed the opportunity for the Court to obtain a feel of the area in terms of what would be an appropriate development in terms of the streetscape to Cornwall Avenue. 4 It is agreed that the only issue in the proceeding is that of the streetscape which springs from the reduced setback of the garage. It is also noted in council's Development Control Plan tendered to the Court that there are setback requirements for the low side of the street of 9 m and for side streets 3.8 m and/or alternatively to look at the prevailing setback of the street. 5 It is noted that in Cornwall Avenue proper where it is wider that the setback for dwellings is significant. However, I am of the opinion that in this small portion of the street which in fact has a dwelling house opposite with a garage at a very reduced setback and a lapped and capped paling fence of some 1.8 m setback approximately 3.5 m from the kerb. And at the end of this narrower portion of the street there is a new dwelling house, part of the dual occupancy development and there is also a house adjoining the subject site that gains access from the street on a much further reduced pavement which has a garage which is setback less than 1 m from the public boundary. 6 The circumstances of this particular application are such that I am of the opinion that the proposal warrants approval. I say this in the context of the fact that this part of the street is considerably narrower and not part of the main part of Cornwall Avenue and in the circumstances having regard to the fact that the setback of the garage that adjoins the proposed garage has a much reduced setback compared to the proposal. In the circumstances, I am satisfied that there will be no adverse streetscape impact by a reduction in council's development code for dual occupancies. 7 The proposal will have a setback of 7.32 m from the roll top kerb if one had regard to a verge which is non existent it would still be in the vicinity of 3.7 m and whilst that is not consistent generally with the area it is not inconsistent with this part of the street and furthermore I have noted the landscaping plan does allow extensive landscaping to make a positive contribution to the street as opposed to a paling fence and that the landscaping will be continuous or seamless in terms of no front fence to Cornwall Avenue.