Barhon Properties Pty Ltd v Ku Ring Gai Council [2004] NSWLEC 119

Land and Environment Court of New South Wales

CITATION : Barhon Properties Pty Ltd v Ku Ring Gai Council [2004] NSWLEC 119 PARTIES : Ku Ring Gai Council FILE NUMBER(S) : 11471 of 2003 CORAM: Tuor C. Development Application :- Dual Occupancy development KEY ISSUES: Impact on streetscape character sunlight to private open space LEGISLATION CITED: Ku Ring Gai Planning Scheme Ordinance State Environmental Planning Policy No 53 CASES CITED: DATES OF HEARING: 29/03/04 EX TEMPORE 03/30/2004 JUDGMENT DATE :

APPLICANT Mr J Hones, solicitor Hones Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr S Simmington, solicitor Phillips Fox

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 11471 of 2003

Tuor C

30 March 2004 BARHON PROPERTIES PTY LTD Applicant v KU RING GAI COUNCIL Respondent Judgment

1 This is an appeal against the refusal by Ku Ring Gai Council (the council) of a development application to demolish an existing house and to construct an attached two-storey dual occupancy development at 2 Cadow Street, Pymble (lot 99 DP 13081).

2 The site is located on the southern side of Cadow Street at its intersection with Ryde Road. It is irregular in shape with a 28.3m curved northern frontage and eastern and western boundaries of about 53m and 56.5m respectively, with an overall area of 1047m2. 3 The site is generally level and has a single story brick house with an attached garage. There are a number of mature trees in the front garden. The surrounding area is characterised by one and two-storey dwellings set in well landscaped gardens. There is a recent dual occupancy development at 5 and 5a Cadow Street. 4 The site is zoned Residential C under Ku Ring Gai Planning Scheme Ordinance (KPSO). The proposed is permissible under State Environmental Planning Policy No. 53 - Metropolitan Residential Development (SEPP53). 5 The statement of issues contained eight issues. Most of these issues were resolved before the hearing. The two outstanding issues can be summarised as: i) whether the proposal has an acceptable impact on the streetscape because of the garages and hard paving area. ii) whether the private open space receives adequate sunlight. 6 In relation to the first issue, the key question is whether the proposal meets the aim of SEPP 53 and is of "good design" having regard to the design principles in cl 32. Clause 32(a)(i) of SEPP 53 states that: The proposed development should: (i) contribute to an attractive residential environment with clear character and identity. 7 The town planning experts, Mr H Sanders, for the council, and Ms K Harragon, for the applicant, held different opinions as to whether this design principle was met. 8 Mr Sander's opinion was that there was a distinct building line in Cadow Street and that the proposed double garage of Dwelling B and the garage and carport of dwelling A were situated forward of the building line and intruded into the front setback area. He stated that: