Ma v Ku-ring-gai Council [2004] NSWLEC 710

Land and Environment Court of New South Wales

CITATION : Ma v Ku-ring-gai Council [2004] NSWLEC 710 APPLICANT Jessie Ma PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 11224 of 2004 CORAM: Hussey C KEY ISSUES: Development Application :- Encroachment into building line - draft Urban Conservation Area LEGISLATION CITED: Ku-ring-gai Development Control Plan No. 6 Development Control Plan No. 38 CASES CITED: DATES OF HEARING: 15/12/2004 EX TEMPORE 12/15/2004 JUDGMENT DATE :

APPLICANT Ms J Ma, self represented

LEGAL REPRESENTATIVES: RESPONDENT Ms J Smith, solicitor SOLICITORS Wilshire Webb

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hussey C

15 December 2004

11224 of 2004 Jessie Ma v Ku-ring-gai Council

JUDGMENT

1 This appeal is against council's refusal of a development application for a double carport ( 5.5 m x 5.5 m), with a 4.9 m street setback and situated at 15 Waimea Road, Lindfield. 2 The applicant Ms Ma requires the carport for car protection, safer access in terms of turning and for it to be located so as not to interfere with existing solar access. In support of her application, she has identified a number of other similar carports, which have been situated in front of the building line. These have been inspected today. 3 Against this, Mr S Swanepoel (council town planner) says that significant weight should be given to the intactness of this section of the street, where intrusions of carports are not characteristic. Accordingly he considers the provisions of DCP 38 should be applied, which discourages carports and garages within the building setback area. 4 In response to Mrs Ma's reference to the encroaching carport at No.19 Waimae Road, he says : § "Approval granted in 1996 in terms of Ku-ring-gai Development Control Plan 6 . DCP 6 was superseded by "The Good Design Manual" in 1998. The latter plan was subsequently updated into 2002 and is now known as Development Control Plan 38 . The current DCP is clear-cut in its treatment of carports and discourages garaging forward of the established building line. · This property is an irregular shaped allotment with its northern side boundary tapering to the rear. The open carport aligns with this boundary and results in a setback that varies from 5.6 m to 7 m, with an average setback in excess of 6.5 m to Waimea Road. · The carport structure is located to the side of the dwelling and does not interrupt the landscape setting between the boundary and the primary facade of the building." 5 With respect to the subject proposal, he says that it does not comply with the requirements of DCP 38, wherein cl 5.5.4 provides: Assessment Criteria Design Requirements 5.5.4 Location of Parking structures The location of a carport or garage must have regard to: · The location of trees both on site and on the relevant adjacent site(s); · The position of windows and other structures on adjacent sites; · Established streetscape; and The location of carports or garages needs to consider existing trees, structures on adjacent sites, streetscape, visual character and heritage issues · The heritage significance of heritage items and their setting and the heritage significance of conservation areas. Garages must not be located forward of the established building line: