Land and Environment Court of New South Wales CITATION : John G Bourke (Homeplan Architects) v Ku-ring-gai Council [2005] NSWLEC 440 APPLICANT John G Bourke (Homeplan Architects) PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 11517 of 2004 CORAM: Hussey C KEY ISSUES: Development Application :- Demolition of existing dwelling - erection of a detached dual occupancy and subdivision Ku-ring-gai Planning Scheme Ordinance LEGISLATION CITED: State Environmental Planning Policy No. 53 (SEPP 53) DATES OF HEARING: 10/08/2005 EX TEMPORE JUDGMENT DATE : 08/10/2005 APPLICANT Mr J Hannaford, solicitor SOLICITORS Hannaford Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr R Graham, solicitor SOLICITORS Abbot Tout JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 10 August 2005 11517 of 2004 John G Bourke (Homeplan Architects) v Ku-ring-gai Council JUDGMENT 1 This is appeal was lodged against council's refusal of a development application for the demolition, building of a detached dual occupancy and subdivision of a property at 320 Mona Vale Road, St Ives. The site has an area of approximately 1024 sq m, a relatively wide frontage to Mona Vale Road and it contains a number native trees that have been assessed by the respective tree experts. 2 Details of the proposal are contained in the Statement of Basic Facts which I accept. The proposal is for the 2 detached dual occupancy buildings which are 2-storey in height with the first floor rooms contained within the roof space. 3 The relevant planning controls are the Ku-ring-gai Planning Scheme Ordinance under which the property is zoned Residential 2C. The prevailing control is State Environmental Planning Policy No. 53 which allows the proposal subject to reasonable compliance with the design controls. Insofar a number of issues were initially identified the applicant has responded with a number of amendments resulting in the outstanding issues being; the utility of the private open space proposed, vegetation, impacts, access and drainage. 4 The parties agreed to Mr N Kennan being appointed the Court-Appointed Expert for planning and he provided a detailed report that concludes with his support for the application. He analysed the open space provision issue in regard to the technical non-compliance with the open space in that it does not provide an area of 100 sq m with a 5 m width. But he has taken into account the irregular shape of the block, the connectivity of the available open space to the living room areas and also the good solar access of this open space and he is satisfied that whilst it is deficient in part for the 5 m width nevertheless, it has high utility and he does not consider it to be reasonable to reject the application of the non compliance of this 5 m width of private open space, stipulated in the DCP. 5 Mr J Hewitt, a traffic consultant has made a detailed assessment of the traffic issue. His conclusion is that the proposed driveway should be relocated of a distance of about 4½ m in order to provide increased safety and sight distance to the bus stop. The applicant has accepted this recommendation and made the necessary amendments and on this basis and there is no objection to the traffic issue. 6 I note that the proposal was notified and attracted an objection from the school, regarding the location of the driveway relative to the number of school children that congregate on the adjacent footpath in the afternoons. I consider that the amendments suggested by Mr Hewitt, and incorporated into the amended plans, addresses this concern to a reasonable extent. 7 In summary then, I am satisfied that the amended proposal addresses the relevant design controls in SEPP 53 based on the assessment by the Court-Appointed Expert, Mr Kennan and my observations at the site inspection. Ultimately, I accept Mr Kennan's planning opinion that conditional consent should be granted to this application as the amended plans reasonably address the issues. 8 Therefore orders of the Court are: 1. The appeal is upheld. 2. Development consent is granted to DA 1087/03 for the demolition of an existing dwelling, construction of a detached dual occupancy and 2 lot subdivision at 320 Mona Vale Road, St Ives, subject to the conditions in Annexure "A". 3. The exhibits to be retained. 4. No order as to costs. ___________________ R Hussey . Commissioner of the Court rjs DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.