Land and Environment Court of New South Wales Loombah Investments v Ku-ring-gai Council [2005] NSWLEC 215 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments. Applicant: Loombah Investments Pty Ltd PARTIES : Respondent: Ku-ring-gai Council FILE NUMBER(S) : 10816 of 2004 CORAM: Roseth SC KEY ISSUES: Development Application - Dual Occupancy :- DATES OF HEARING: 13/12/2004 DATE OF JUDGMENT: 05/03/2005 Applicant: Mr S Kondilios, solicitor LEGAL REPRESENTATIVES: Respondent: Mr G Reilly, solicitor JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Roseth SC 3 May 2005 10816 of 2004 Loombah Investments Pty ltd v Ku-ring-gai Council JUDGMENT The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. The conditions are not reproduced as part of this decision but are available for inspection at the Council. A copy the Court's Orders and conditions may be obtained from the Court's registry on payment of a fee. For details of the fee payable and process for obtaining a copy of the Orders and conditions see the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 1 Senior Commissioner: This is an appeal against the refusal by Ku-ring-gai Council (the council) of a development application to erect a new dwelling to be the second dwelling of a detached dual occupancy development on lot 31 DP 11447, known as 2 Loombah Avenue, Lindfield. The site 2 The site is at the corner of Tryon Road and Loombah Avenue. It has an area of 1,234m2. A two-storey house now stands on the Tryon Road part of the site, leaving a large area undeveloped. The surrounding area is all low-density detached housing built mainly between 1920 and 1945. The proposal and its history 3 The applicant proposes to erect a second two-storey dwelling on the undeveloped portion of the site. The applicant lodged the application in July 2003. Following notification, the council received 15 objections. The applicant lodged the appeal against deemed refusal in July 2004. In August 2004 the council refused the application under delegated authority. The issues 4 The council submitted a Statement of Issues containing seven issues, ie · relationship to adjoining properties, · inadequate building setback, · building is too big, · private open space is insufficient, · too many trees are lost, · not enough new trees are planted, · objectors' concerns. The Court-appointed expert's evidence 5 The Court appointed Ms K Gordon as the planning expert. Ms Gordon suggested a number of changes to the proposal. The applicant responded to the suggestions by submitting amended drawings. In Ms Gordon's view these did not fully correspond to her suggestions. She proposed further amendments expressed as conditions. During the hearing the applicant accepted all of these. 6 In the event there remained only very small differences of opinion between the parties, the major one of which was whether a person using the stairs leading from the living area to the garden could look into the adjoining property. In my opinion the stairs will allow some overlooking, but not to an extent that could be considered unacceptable. The appeal is therefore upheld. Orders 1. The appeal is upheld. 2. The development application to erect a new dwelling to form the second dwelling of a detached dual occupancy development on lot 31 DP 11447, known as 2 Loombah Avenue, Lindfield is determined by the grant of consent subject to the conditions in annexure A. 3. The exhibits are returned except Exhibits 6, A and B. _____________ Dr John Roseth Senior Commissioner 11/05/2005 - the word "not" in the penultimate sentence was a typing mistake. - Paragraph(s) 6 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.