Byron v Ku-ring-gai Council [2005] NSWLEC 671

Land and Environment Court of New South Wales

CITATION : Byron v Ku-ring-gai Council [2005] NSWLEC 671

APPLICANT David Arthur and Dora Maria Byron

PARTIES : RESPONDENT Ku-ring-gai Council

FILE NUMBER(S) : 10473 of 2005

CORAM: Hoffman C

KEY ISSUES: Development Application :- Detached dual occupancy - tree loss - solar access and design for climate - stormwater - access - owners consent

State Environmental Planning Policy No. 53, Metropolitan Residential Development LEGISLATION CITED: Ku-ring-gai Planning Scheme Ordinance 1971 Environmental Planning and Assessment Act 1979

CASES CITED: Pro-Vision Developments Pty Ltd v Ku-ring-gai [2003] NSWLEC 226

DATES OF HEARING: 26/08/2005 and 02/09/2005

DATE OF JUDGMENT: 11/24/2005

APPLICANT Mr S Kondilios, solicitor Instructed by: Ms S Halls, solicitor SOLICITORS Maddocks LEGAL REPRESENTATIVES: RESPONDENT Mr R Graham, solicitor SOLICITORS Abbot Tout

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hoffman C

24 November 2005

10473 of 2005 David Arthur & Dora Maria Byron v Ku-ring-gai Council

JUDGMENT 1 This is a Class 1 appeal No. 10473 of 2005 between DA & DM Byron v Ku-ring-gai Council in regards to the refusal of a proposal to demolish an existing house and erect a detached dual occupancy at Lot 3 DP 512105 being No. 38B Holmes Street, Turramurra. 2 The site is a battle axe lot with the access handle about 95 m long running between 4 houses, 2 on each side of the drive. No. 38A shares the driveway with the subject site and it is a house behind No. 38 that has full frontage to Holmes Street. No. 38A and 38B each have a 3.6 m wide frontage for their access and due to the number of trees along the 2 access corridors, the 2 lots share the one driveway which at present is formed by roadbase only, and appears somewhat like a bush track winding through the trees. 3 The main part of No. 38B has an area of about 1300 sq m with a width of 28.7 sq m and a depth of 45.4 m. Adjoining it on the south is No. 44 Holmes Street that is another battle axe lot, the existing house on it is built close to the common boundary and slightly uphill of the proposed House A of the dual occupancy. House B on the north side of the lot is more or less beside House A and they both only have space enough for a shared car courtyard between them and the eastern boundary adjoining No. 38A. 4 On the north side of the proposal just uphill of House B is the house on No. 36 Holmes Street another battleaxe lot. 5 A little downhill of House B is another house on a battleaxe lot being No. 32A Holmes Street. 6 No. 40 Holmes Street is on the south side of the driveway being a standard sized frontage to the street similar to No. 38 on the north side of the drive. 7 The land rises slightly from Holmes Street cresting at No. 38A and then sloping down through No. 38B and beyond down hill. There is about a 6 m fall through the main part of the lot where Houses A and B are located with a flattish area just below the proposed houses that forms a suitable backyard area for each. Retaining walls and backfill is proposed to level the yards. The yard for House B is adjacent the house on No. 32A and it has its master bedroom and en-suite adjacent the common boundary. 8 The proposal is to straighten and seal the driveway as a result removing a number of the existing large trees. There is an existing drainage easement through the next allotment down hill of the subject site. That property is No. 52 Findlay Street. 9 The issues in the appeal are: 1. The proposal is inconsistent with the requirements of State Environmental Planning Policy No. 53, Metropolitan Residential Development, Part 5, Design Requirements, Clauses 32 (b) visual and acoustic privacy, (c) solar access and design for climate, (d) stormwater and (f) accessibility. (b) Visual and acoustic privacy The proposed detention basins and retaining walls at the rear of the property will visually impact on the adjoining property at No. 52 Finlay Road. (c) Solar access and design for climate The proposed realignment of the driveway will require the removal of trees within the access handle. House B will impact on Tree 43, Eucalyptus pilularis (Blackbutt) located on the adjoining property, No. 36 Holmes Street. The arborists report has identified the tree as a priority for retention. The proposed dwelling has been located at a distance of 4.5 m from the tree's trunk, which is the nominated critical root zone by the arborist however excavation of up to 1.5 m is required to construct the proposed dwelling. To achieve the desired levels excavation is required beyond the footprint of the dwelling resulting in root loss within the critical root zone. The subject tree is 25 m in height with a 15 m canopy spread. Damage to the roots within the critical root system will impact on the health of the tree and affect its stability. A minimum setback of 8 m is required to preserve the tree. The setback between the dwellings varies from 3.5 to 5 m with excavation up to 2 m in depth required. The area between the dwellings will be un-suitable for plant growth due to the large amount of excavation required for both dwellings. (Rocky outcrops are visible on the site indicting a shallow soil profile.) There are concerns regarding the heights of various species proposed along the southern boundary of the development site. The concerns relate to solar access and canopy overhang. (d) Stormwater The proposed inter-allotment drainage system involves a pipe of unknown diameter laid through No. 52 Finlay Road for 100 m beneath significant tree canopies and into a watercourse (despite s 5.3 of the Statement of Environmental Effects "The site will not discharge into any waterway"). Further details of this proposal will be required i.e. a survey carried out of the proposed route indicating all trees affected and the treatment of stormwater into the watercourse to prevent scouring and erosion. How is this system to be constructed without impact on existing trees. There is no scope for an overland flow path to be constructed along the easement (due to the trees). Sandstone is outcropping along the line of the easement. It is expected that the whole length will have to be thrust bored and that the pipe will have to be sized to convey the 100 year ARI flow from the site. It is difficult to determine the effect of the proposed detention basins on the rear boundary, requiring walls up to 1 m high, on the dwelling at No. 52 Finlay Road. This dwelling is quite close to the boundary and at the lower level. The design of the overflow structure would have to be carefully addressed in the design. The prevention of runoff from the newly sealed driveway from entering No. 44 does not appear to be addressed on the stormwater plan, as only 40 sq m of area is shown contributing runoff to the grated drain at each entrance. The on site detention design contains an error which means that the permissible site discharge is overestimated. This is due to the typographical error in DCP 47 (now rectified) and could be corrected later. (f) Accessibility The length of the right of way is about 95 m. Sight distance is not available from one end to the other because of a crest approximately in the middle. Two formal passing bays are required to achieve compliance with the recommendations of AS28.90.1:2004 (Section 3.2.2 – passing opportunities at least every 30 m.) Sight distance for vehicles exiting the concourse in front of the two new dwellings is restricted by vegetation and the rock shelf, both of which are in the neighbouring property, No. 38A Holmes Street. An arborist should be requested to address specifically the impacts of bringing the driveway up to the standard required and of constructing the inter-allotment drainage line within No. 52 Finlay Road. The arborist's recommendations could then be incorporated into conditions, if appropriate. If the provision of two turning bays and an upgraded surface is likely to compromise the trees unacceptably, a traffic engineer's report giving recommendations for bringing the driveway to a suitable standard is to be provided. Sight distance at each end for cars must be addressed, as well as access for service vehicles along this very long driveway. 2. No owners consent has been provided in respect of the proposal driveway pavement works within the common rights of carriage from the adjoining owner/s. 3. No details of the common rights of carriageway have been provided from the Instrument filed as J838776. 10 The respondents evidence was heard from: + Mr A Todicescu, objector and resident of No. 36 Holmes Street. + Mr S. Ramanathan, objector and resident of No. 38A Holmes Street. + Mr and Mrs Rowley, objectors and residents of No. 32A Holmes Street. + Mr and Mrs Bass, objectors and residents of No. 44 Holmes Street. + Mr and Mrs Kingdom, objector and residents of No. 40 Holmes Street.