Yardley v Ku-ring-gai Council [2005] NSWLEC 502

Land and Environment Court of New South Wales

CITATION : Yardley v Ku-ring-gai Council [2005] NSWLEC 502

Applicant: Ken Yardley PARTIES : Respondent: Ku-ring-gai Council

FILE NUMBER(S) : 10743 of 2005

CORAM: Roseth SC

KEY ISSUES: Development Application :- application of setback from DPC

DATES OF HEARING: 12/09/2005 EX TEMPORE JUDGMENT DATE : 09/12/2005

Applicant: Mr M Horton, solicitor of RBHM LEGAL REPRESENTATIVES: Respondent: Mr P Rigg, solicitor of Deacons

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Roseth SC

12 September 2005

10743 of 2005 Ken Yardley v Ku-ring-gai Council

JUDGMENT

The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 1 Senior Commissioner: This is an appeal against the refusal by Ku-ring-gai Council (the council) of a development application to extend the existing house on lot 8 DP 13023, known as 11 Abingdon Road, Roseville. 2 The site is on the eastern side of Abingdon Road. The proposal involves additions to the rear of the house, which are not in dispute, and a double carport in the front, which is set back 11.5m from the street alignment. The council's Development Control Plan 38 – Residential Design Manual (DCP 38) establishes, for single-storey buildings, a minimum setback of 12m for the east (high) side of the street. The dispute therefore revolves around the 500mm shortfall in setback and the council's general desire that carports and garages should be accommodated behind the building line. 3 There are no objectors to the proposal. A neighbour opposite and the two neighbours on either side support it. The two neighbouring properties are set back 11.5m from the street. On visual inspection, it appears that most of the houses on the east side are set back 11.5m. 4 In the council's submission, the carport should be either a tandem carport within the side setback or should be located within the rear garden. In my opinion, both suggestions are unsound. The fact that a tandem carport would be inconvenient for the applicant is only a minor factor. However, a carport within the northern setback would deprive the living room of the precious northern sunlight it currently gets. It would be a solution that is inconsistent with the Environmental Planning and Assessment Act's objective of promoting environmental sustainability. Locating the carport in the rear would destroy the currently pleasant nature of the rear yard, remove some trees and possibly create problems by building over a publicly owned sewer line. In addition it would necessitate a long driveway and thus reduce the permeable area of the site. It would be a solution that is also inconsistent with environmental sustainability. I note, by the way, that DCP 38 suggests parking in the rear only where rear access is available, which is not the case for this property. 5 In my opinion, the slight shortfall of 500mm in the setback is far more consistent with the setback objectives of DCP 38 than the two alternative locations suggested by the council. I note that those objectives include the facilitation of solar access, the protection of vegetation and the efficient use of the site. All of these objectives are better served by the carport in the location in which it is now proposed than by any alternatives. For the above reasons the appeal is upheld.