Masad v Ku-ring-gai C [2005] NSWLEC 460

Land and Environment Court of New South Wales

CITATION : Masad v Ku-ring-gai C [2005] NSWLEC 460

APPLICANT Haytham Masad

PARTIES : RESPONDENT Ku-ring-gai Council

FILE NUMBER(S) : 10197 of 2005

CORAM: Tuor C

Development Application :- Construction of an attached dual occupancy development - Asbestos removal - Drainage - Privacy - Overshadowing - Streetscape - Setbacks - Height and Bulk - Amenity Impacts and Landscaping. 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 5

GPV No 5 (Wombarra) Pty Limited v Wollongong City Council [2003] NSWLEC 268; CASES CITED: Project Venture Developments v Pittwater Council [2005] NSWLEC 191

DATES OF HEARING: 4/08/2005 EX TEMPORE JUDGMENT DATE : 08/04/2005

APPLICANT Mr J. Hones, solicitor of Hones Lawyers

LEGAL REPRESENTATIVES:

RESPONDENT Mr B. Tobin, solicitor of Abbott Tout

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

4 August 2005

10197 of 2005 Haytham Masad v Ku-ring-gai Council

JUDGMENT 1 This is appeal against the refusal by Ku-ring-gai Council (council) of a Development Application for an attached dual occupancy development at 1 Canoon Road, Turramurra (the site) under State Environmental Planning Policy No 53 (SEPP 53). 2 The site, its context and details of the application are contained in the Statement of Basic Facts. I carried out an inspection of the site and surrounding area and heard evidence from residents and from Ms K Gordon, the Court appointed planning expert, and Mr I Glendenning, the applicant's town planner. 3 The main concerns of the residents related to removal of asbestos, drainage, privacy impact, the height and bulk of the development and streetscape impact. 4 The asbestos removal has been dealt with by conditions of consent. 5 The drainage issue relates to the requirement for an easement to be obtained either over an existing easement or a downstream property. The parties propose a deferred commencement consent to enable an easement to be obtained, which I find acceptable. 6 The owner of No. 193 Kissing Point Road was concerned about overlooking. I accept Ms Gordon's evidence that the privacy impacts to this property are satisfactory as the site is lower than No 193 and the proposed windows are placed to avoid direct overlooking. The proposed condition to lower the paving area also minimises privacy impacts to this adjoining property. 7 The owners to the properties to the rear, Nos. 12 and 14 Parkinson Avenue were also concerned about overlooking. I accept the evidence of the experts that this is reasonable due to the distance between these properties and the site being some 14.4 m from the end of the proposed paving to the common boundary of No.14 and further to No.12. 8 The upper floor of the proposal has bedroom windows facing Nos 12 and 14, but obscure glazing is proposed to the bottom of these windows which will prevent overlooking. From the lower level and the paved area, the existing screening and fence limit the potential for overlooking and the planting will be further reinforced. The site is at a higher level to these properties and there will be a degree of overlooking but this is little different to the current arrangement or to what is reasonably to be expected in a residential environment.