Land and Environment Court of New South Wales CITATION : Residential Logistics Pty Ltd v Ku-ring-gai Council [2004] NSWLEC 407 APPLICANT Residential Logistics Pty Ltd PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 10141-42 and 10144 of 2004 CORAM: Bly C KEY ISSUES: Development Application :- Dual occupancy - resubdivision of land LEGISLATION CITED: State Environmental Planning Policy No. 53 Ku-ring-gai Planning Scheme CASES CITED: DATES OF HEARING: 12/05/2004 EX TEMPORE 05/12/2004 JUDGMENT DATE : APPLICANT Nr B K Hones, solicitor SOLICITORS Hones Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr R K Graham, solicitor RESPONDENT Abbott Tout JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 12 May 2004 10141- 42 and 10144 of 2004 Residential Logistics Pty Ltd v Ku-ring-gai Council JUDGMENT 1 The Court has before it two development applications for the erection of dual occupancy developments at the corner of Malory and Yanko Roads in West Pymble. At the start of the day there were three appeals before the Court, two appeals relating to the dual occupancy developments and one in relation to the resubdivision of the subject land. 2 The subject land comprises two lots, each occupied by a dwelling house. These dwelling houses are to be demolished and the subdivision proposal was to relocate the common boundary between those two properties. 3 The appeal in relation to the subdivision application has now been discontinued because the council has decided to approve the subdivision, thus creating the lots upon which the dual occupancies are proposed. 4 The Court was provided with statements of issues in relation to both dual occupancy developments and statements of basic facts. In addition I received reports from Mr Graham Stewart, a development control officer with the Ku-ring-gai Council, and a report from Mr Ian Glendinning, a town planner, who gave evidence on behalf of the applicant. 5 Both sites, which are known as Nos 63 and 65 Yanko Road, are zoned residential "C" under the Ku-ring-gai Planning Scheme. In that zone dual occupancy development is not permissible. However it can be approved in accordance with State Environmental Planning Policy 53. 6 The two applications were refused by the council for reasons which formed essentially the basis of the statements of issues which were provided to the Court. However following some changes to at least one of the proposals and a further more careful examination of the applications, the council has now decided that it is prepared to enter into consent orders with the applicant. 7 Notwithstanding that decision of the council to enter into those consent orders, the Court was informed that there were two objections lodged as a result of the notification process. One objection was from No. 61 Yanko Road in relation to the proposed dual occupancy development at No. 63 and the second objection was from No. 34 Malory Road in relation to the proposed dual occupancy at No. 65. Whilst on site this morning those two neighbours explained their concerns and I was able to understand those concerns by visiting their properties. I also had the opportunity of hearing from Mr Glendinning, who provided me with some assistance in relation to how I might consider those objections. 8 The objection from No. 61 Yanko Road was from Mr C Dimitroff and was in relation to privacy and overshadowing. I am satisfied that the privacy aspect has been resolved by amendments to the proposal involving 1.6 m high windowsills and the use of obscure glazing in the bathroom window. Mr Dimitroff seemed to be satisfied with this outcome. He nevertheless remained concerned that the building would overshadow his property. 9 On close examination it was discovered that his outdoor recreation area, particularly his entertainment deck, would not be affected by shadows until after 3 pm and upon realising this he did not express any great concern. He nevertheless was very concerned that at about 1.30 pm at the winter solstice, the proposed dual occupancy development would begin to overshadow his pool. By 3 pm about one third of the pool would be overshadowed and this shadow would further extend its effect after 3 pm. He explained to the Court that the pool is heated and can be used in winter. 10 Despite this I do not accept that his concerns are such as to warrant rejecting this particular application. In that regard I accept Mr Glendinning's evidence that solar access to No. 61 easily exceeds the requirements of AMCORD and indeed SEPP 53. More particularly he pointed out that the 3 hour midwinter requirement is easily met and that some afternoon overshadowing at the winter solstice would not be unreasonable. 11 In the circumstances I see no reason why the development application for No. 63 should not be approved. 12 In relation to No. 65, the objection was from Mr A Gamkrelidze. His concerns were twofold. Firstly, he believed that the proposed dwelling B at No. 65 should have an increased setback, perhaps not as great as the existing building line in Malory Street but greater than the 7 m proposed. Again I believe Mr Glendinning to be correct in his explanation that the arrangement on the site is not only appropriate for this corner position but also meets the requirements of council's residential DCP 38 which provides concessions in relation to corner lots. I also agree that to require greater setbacks than the 7 m proposed would probably result in an unreasonable constraint on the ability to develop this site in a reasonable manner, making best use of its orientation. 13 The second matter of Mr Gamkrelidze, the occupant of No. 34, was the appearance of dwelling B as would be seen from his front garden area. In this regard he was concerned that it was too high and was too close to the boundary. In this context I note that this building almost entirely complies with the building height plane requirement and with a setback of 3 m I do not accept that a 2 storey building would be unreasonable. 14 Mr Glendinning pointed out that the 2.980 m setback, which is almost 3 m, is more than sufficient to provide for appropriate landscaping to soften the appearance of the structure. 15 In those circumstances I see no reason why the proposed development for No. 65 Yanko Road should not be approved. 16 I do make one comment. I think that whilst the concerns of the resident of No. 34 were not such as to require changes or to warrant refusal of the application, and whilst we discussed possible changes to dwelling B, I nevertheless believe that a more sensitive design for this dwelling could have avoided his concerns and produced a better outcome probably for the streetscape and also in his own private interest. 17 I agree with Mr Glendinning that the ground floor arrangement of this dwelling which makes use of its essentially northern orientation is entirely appropriate and probably should not be changed. I also note the position of the driveway and therefore the position of the garage, which has been positioned in part at least I think so as to retain existing trees. 18 Nevertheless I think that there may have been an opportunity to redesign the first floor potentially by moving the bulk of the structure perhaps more towards the centre, such that there is in part at least a single storey element of the structure on the north side. Whether the applicant is prepared to give some consideration to an amended design to achieve that is a matter for the applicant. I would invite them to give some thought to it and submitting a revised plan to achieve that but, as I have said, it is no more than a suggestion because in its present form the proposal does not warrant refusal. 19 The orders of the Court are as follows: 1. The appeal is upheld. 2. Development application No. 1630/03 for an attached dual occupancy development at No. 63 Yanko Road, West Pymble is determined by the granting of development consent subject to the conditions in Annexure 'A' hereto. 3. Exhibit A is retained. T A Bly Commissioner of the Court nmc 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.