Land and Environment Court of New South Wales CITATION : Dale v Ku-ring-gai Municipal Council [2004] NSWLEC 670 APPLICANT Clive Dale PARTIES : RESPONDENT Ku-ring-gai Municipal Council FILE NUMBER(S) : 10953 of 2004 CORAM: Murrell C KEY ISSUES: Development Application :- Demolition of existing dwelling and construction of an attached dual occupancy - privacy - landscape - setback - streetscape LEGISLATION CITED: Environmental Planning and Assessment Act 1979 CASES CITED: DATES OF HEARING: 28/10/2004 and 18/11/2004 EX TEMPORE 11/18/2004 JUDGMENT DATE : APPLICANT Mr G McKee, solicitor McKees Legal Solutions LEGAL REPRESENTATIVES: RESPONDENT Mr R Graham, solicitor Abbott Tout JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 18 November 2004 10953 of 2004 Clive Dale v Ku-ring-gai Municipal Council JUDGMENT 1 This is an appeal under s. 97 of the Environmental Planning and Assessment Act against Ku-ring-gai Municipal Council's refusal of a development application for the property known as 85 Pentacost Avenue, Pymble. The proposal is for the demolition of the existing dwelling and construction of an attached dual occupancy. The attached dual occupancy is such that it will read as a single large dwelling with two pavilions. 2 There was a court appointed expert in these proceedings, Ms Kerry Gordon. She assisted the Court, provided evidence and a statement to the Court and attended the on site meeting. 3 By way of background this matter commenced as an on site hearing and at the on site hearing the Court heard from the adjoining property owner, Mr Sainty of 87 Pentacost Avenue. Mr Sainty's concerns were with respect to the levels of dwelling B and the consequential privacy concerns or overlooking that may occur to his property. In particular his entertaining pool area. 4 On the view it was seen that dwelling 'B' could be lowered some 500 mm which would ameliorate many of the overlooking concerns and also the proposed development would read more appropriately in terms of the topography, both from the Pymble Golf Course and Pentacost Avenue. 5 The applicant submitted amended plans together with an amended landscape plan which has been assessed by the court appointed expert and she is of the opinion that the development is appropriate, subject to some minor conditions. Mr Sainty provided further advice by way of a letter to the council's solicitor and a copy has been provided to the Court as exhibit 1. The Court heard from him on the view and a great deal of time was taken in addressing his concerns. His outstanding concern is in terms of the adjoining fence where the dining room adjoins his boundary. It is noted that the dining room is set back some 3 m from the common boundary which is the western boundary of the subject site and with the reduction in the level by 500 mm at that point, and with the benefit of the court appointed expert, I am satisfied that a 2 m fence is appropriate and satisfactory in the circumstances. There is existing vegetation which is to be retained and the dining room window is setback some 3 m from the common boundary I am satisfied that it would not provide for unreasonable privacy concerns to the adjoining property. 6 With respect to his request for frosted windows on the western elevation, this has been considered this morning in Court. The window that the applicant objects to be frosted is that to a second bedroom. I agree with the court appointed expert that it is not necessary to provide frosted glazing in this window given the juxtaposition, the set back from the side boundary, the intervening landscaping and the fact that this is a secondary room as opposed to a living area and it is the relationship with the upstairs balcony off a secondary room as well, that being a bedroom. I am satisfied that the amenity of the bedroom in the proposed development should not be compromised to the point of requiring frosted glazing. 7 With respect to the landscaping while a bond is not appropriate, I do note that council has proposed conditions, that are generally agreed to by the applicant, that prior to the Occupation Certificate and the Final Compliance Certificate the landscaping must be carried out, implemented and installed in accordance with the landscape plan and in this will suffice in the Court's opinion in terms of ensuring the landscaping is undertaken. 8 Mr Sainty was also concerned that the western boundary fence between the street and the dwelling should be constructed or erected prior to any other construction on site, that is a brush fence, permanently incited and the applicant has agreed to this as well and the protection of the landscaping is to be retained in that location adjoining the western boundary in the front setback area. 9 As I stated the Court has had the benefit of reading the expert's report on the development that comes before me today in terms of the amended plans and which provide for the general lowering of dwelling two, and the reduction in what I will call a colonnade effect around the northern part of the dwelling and returning on the western and eastern elevations has been reduced in bulk and increased in setback. I am satisfied this provides for a functional treatment and architectural detail to the dwelling while being less bulky in appearance and I am also satisfied that the design of the dwelling is one that is appropriate for its location. 10 With respect to the front fence, this was discussed this morning and Ms Gordon's concerns would be accommodated by the front fence as shown on the elevation, drawing 04A, being such that a hedge would be planted behind it and more open timber slants between the pillars to pick up the architectural detail of the element in the middle of the proposed development where the front door entries are. 11 A materials and finishes schedule has been provided to the Court as well as perspectives. And in developments such as this, perspectives are of assistance in visualising the development in its context. The Pentacost Avenue area is a leafy landscaped area that should be enhanced and the proposed application as well is consistent with maintaining the character of the area. On the basis of the material provided to the Court I am satisfied the proposed in worthy of approval and note the co-operation of the council and the applicant. In the Court's opinion the amended plan will provide for a most appropriate development that a will sit comfortably in the streetscape and the context of the golf course. 12 The condition concerning the landscaping bond is to be deleted. I am satisfied in terms of the other conditions (No. 37 requires all the landscaping to be carried out and No. 39 requires prior to the issuing of Occupation Certificate and Final Compliance Certificate landscaping to be completed) are appropriate to ensure the landscaping is carried out in accordance with the approved plan. 13 On the basis of my assessment the orders of the Court are: 1. The appeal in respect of the property known as 85 Pentacost Avenue Pymble is upheld. 2. The development application submitted to Ku-ring-gai Council, for the above property, is approved subject to the conditions contained in annexure 'A'. Annexure 'A' is the set of conditions as generally agreed to between the parties and refers to the relevant amended plans. 3. The exhibits may be returned with the exception of A, B, C and 2. 4. There is no order as to costs. _________________________ JS Murrell Commissioner of the Court ljr 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.