Ben-Menashe v Ku-ring-gai C [2005] NSWLEC 172

Land and Environment Court of New South Wales

CITATION : Ben-Menashe v Ku-ring-gai C [2005] NSWLEC 172

APPLICANT I & L Ben-Menashe

PARTIES : RESPONDENT Ku-ring-gai Council

FILE NUMBER(S) : 10009 of 2005

CORAM: Hussey C

Development Application :- Attached dual occupancy - Bulk and Scale - Amenity impacts - Traffic/parking. KEY ISSUES:

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: SEPP53

DATES OF HEARING: 13/04/05 EX TEMPORE JUDGMENT DATE : 04/13/2005

APPLICANT Mr S. Kondilios, solicitor of Maddocks

LEGAL REPRESENTATIVES:

RESPONDENT Mr R. Graham, solicitor of Abbott Tout

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hussey C

13 April 2005

10009 of 2005 I & L Ben-Menashe v Ku-ring-gai Council

JUDGMENT 1 This appeal concerns council's refusal of a development application for an attached dual occupancy at No. 41 Kissing Point Road, Turramurra. The proposal's for a two-storey dwelling containing Unit A having a two bedrooms and study and Unit B having three bedrooms and a study. 2 The full details of the proposal and relative planning framework are in the Statement of Basic Facts, which I adopt and that includes details of the site area, which is 706 sq m. For the appeal the parties have agreed to the appointment of Ms Deborah Laidlaw as the Court appointed expert for planning and she prepared a detaied report to address the issues and the matters raised by the objectors. 3 I note this morning, that in response to her comments the applicant has amended the plans by lowering the proposal in the order of 500 mm – 1 m (approximately) along the roofline. 4 Significantly in this case, SEPP 53 is the prevailing control, which allows some changes and increase in areas of basic compliance, over that which is specified in other council controls. But it specifies numeric controls and also qualitative assessments that have to be made. 5 In summary the issues concern the: