Land and Environment Court of New South Wales CITATION : Wassef v Ku-ring-gai Council [2005] NSWLEC 290 APPLICANT Rafat George Wassef PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 10870 of 2004 CORAM: Nott C Development Application :- privacy impacts - visual bulk - loss of outlook - streetscape and character KEY ISSUES: Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planning Policy No. 1 - Development Standards Development Control Plan No. 38 CASES CITED: BGP Properties Pty Ltd v Lake Macquarie CC [2004] NSWLEC 399 DATES OF HEARING: 04/05/2005 and 11/05/2005 EX TEMPORE JUDGMENT DATE : 05/11/2005 APPLICANT Dr S Berveling, barrister SOLICITORS Mervyn J Cathers & Co LEGAL REPRESENTATIVES: RESPONDENT Mr P Rigg, solicitor SOLICITORS Deacons JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Nott C 11 May 2005 10870 of 2004 Rafat George Wassef v Ku-ring-gai Council JUDGMENT 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 in respect of a development application to erect a dwelling house at 21 Rothwell Road, Turramurra. 2 For the purpose of the hearing, the issues were set out in an amended statement of issues, exhibit 1. 3 On my site inspection on 4 May 2005 I heard evidence from local residents whose properties adjoin or are near the subject site. 4 It is relevant to note that in the light of objections that had been raised, the original development-application plans were significantly amended by deleting a living room. This deletion was recommended by the Court- appointed town-planning expert, Mr G Goodyer. Subject to that amendment and conditions that he recommended, he was of the opinion that it would be appropriate to grant development consent. 5 However, upon my inspection of the subject site, it appeared to me that further amendments ought to be made including: a further setting back of the proposed building from the adjoining dwelling house at 23 Rothwell Road; and a relocation of the proposed carport in order to have it set back from the side boundary of 19 Rothwell Road and to avoid adverse impacts that the driveway to that carport would have had on a very large tree near the kerb. 6 Other changes were also made following my inspection of the subject site and the hearing of some evidence in Court. These changes included the deletion of an eaves overhang, which would impact on the overshadowing of No. 19; and the use of obscure glazing at the upper level at the rear of the proposed development, this glazing to be obscure to a height of 1.6 m above the floor. 7 Having regard to the further changes that were made to the plans following my site inspection that are now incorporated in the amended plans, exhibit H, I am of the opinion that development consent should be granted for the proposed development subject to the quite detailed conditions that have been formulated by the parties taking into account the amenity of the neighbours. 8 In deciding that development consent should be granted, I agree in general with the assessment made by Mr J Vescio, town planner, and the reasons given in the objection pursuant to State Environmental Planning Policy No 1—Development Standards. 9 The objection under SEPP 1 was in respect of the height of the proposal. The development standard specifies a maximum height measured from the topmost ceiling to the natural ground level of 8 m, whereas the proposal (although 8 m at one point) rises to 9.2 m. The reason for the height of the proposed development stems from the fact that a creek flows through the subject land and poses a significant constraint upon development. The proposed building, however, will be lower than its immediately adjoining neighbours, and I have taken into account the impacts that the proposed development might have because of its height and, in particular, overshadowing of No. 19. 10 By making the amendments referred to earlier, the bulk of the proposed building has been significantly reduced and the principal outlook from both Nos 19 and 23 has been improved. Major trees located between the front boundary of the subject site and the front or south-western elevation of the proposed development will be preserved. 11 All trees and vegetation located to the south-east of the creek that flows through the subject land will be retained. There will be a large tree together with some smaller trees removed within the footprint of the proposed building. However, the landscape plan provides for the planting of many additional trees and for appropriate landscaping of the site generally. 12 In accordance with Development Control Plan No. 38, the north-facing windows and the principal outdoor area of the property at No. 19 would appear to have four hours of sunlight between the hours of 9 am and 3 pm, although there may be some minor encroachment at the base of the full length sliding doors or windows of the rumpus room. In my opinion, the impacts in relation to overshadowing and the other impacts to which reference has been made by the objectors are not such as would warrant refusal of the application. 13 I have taken into account the other provisions of the DCP. I have already referred to the question of height, and the provisions of the DCP relating to height are in effect dealt with by the objection under SEPP 1. 14 I have also referred to matters relating to landscaping. Dr Berveling, who appeared for the applicant referred to the decision of the Chief Judge of this Court in BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 at [117] where his Honour said: Planning decisions must generally reflect an assumption that in some form development which is consistent with the zoning will be permitted. 15 Of course, it would be possible to have a much smaller development with fewer impacts, but it is a question of balance and reasonableness. I consider that the proposed development is environmentally acceptable on the subject land, which is a difficult site to develop. I have also taken into account that the impacts of the proposal generally are reasonable even if there may be some departures from DCP 38. 16 In relation specifically to No. 23, the moving of the building 1 m further away from the common boundary with that property has enabled an amended landscape plan to be provided and for significant vegetation to be planted. The setback of the proposed building from the common boundary with No. 23 now varies from 1.9 m to the elevated ground floor and 2.9 m to the wall of the upper level. There is a minor departure of 100 mm of the ground floor level but this is acceptable in my opinion having regard to the setback of the upper level and having regard to the fact that the ground floor plan of the proposal is elevated on piers and the root systems of trees and vegetation along the common boundary will not be impeded by a structure that would ordinarily be built at ground level if the site was a flat one. 17 The privacy of the property to the rear at 26 Monteith Street will be protected by the obscure glazing I referred to earlier and by the setback of the proposed building from the rear boundary. With the intervening laneway, there will be an appropriate relationship between the subject land and that property. 18 Various options for developing the subject site were no doubt considered and although the proposed building is located towards the rear of the site, it seems to me that that is an appropriate location. The impact of course on the streetscape will be minimal because of the large setback. 19 It is appropriate that the carport be in the position that is proposed taking into account the trees that will be seen rising above it and the landscaping that will be required to be provided in accordance with the conditions of consent around the carport. 20 It is understandable that there were objections from the adjoining neighbours including another neighbour at 17 Rothwell Road, insofar as the proposed building will of necessity mean the removal of some vegetation and trees within its footprint. However, the footprint of the proposed development is reasonable, and I consider that development consent should be granted. 21 I am in general agreement with the other reasons given by the Court- appointed expert for allowing this appeal. 22 Accordingly, the orders of the Court are: 1. The appeal is upheld. 2. Development consent is granted for the erection of a dwelling house at 21 Rothwell Road, Turramurra, subject to the conditions in annexure A hereto. 3. The exhibits, other than exhibits 3, 10, E, H and K, may be returned. ________________ A J Nott 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.