B Habibi & F Kazazi v Ku-ring-gai Municipal Council [2004] NSWLEC 354

Land and Environment Court of New South Wales

CITATION : B Habibi & F Kazazi v Ku-ring-gai Municipal Council [2004] NSWLEC 354 APPLICANT PARTIES : B Habibi & F Kazazi RESPONDENT Ku-ring-gai Municipal Council FILE NUMBER(S) : 11524; 10163 of 2004 of 2003 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Riparian protection LEGISLATION CITED: State Environmental Planning Policy No 55, (SEPP55) - State Environmental Planning Policy No 53, (SEPP53) - Ku-ring-gai Planning Scheme Ordinance, (KPSO) - Ku-ring-gai Dual Occupancy Development Control Code, (Code) - Ku-ring-gai Residential Good Design Manual, (DCP38) - Ku-ring-gai Notification Policy, (Policy) - Stormwater Management Manual (1993), (SMM) - Rivers and Foreshore Improvement Act 1948, (RFI Act) CASES CITED: DATES OF HEARING: 02/06/2004, 03/06/2004 DATE OF JUDGMENT: 07/07/2004

APPLICANT: Mr I Hemmings, barrister, instructed by Mr J Hones, solicitor SOLICITORS: Hones Lawyers LEGAL REPRESENTATIVES: RESPONDENT: Mr R K Graham, solicitor SOLICITORS: Abbott Tout

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

7 July 2004

10524 of 2003 and 10163 of 2004

B Habibi & F Kazazi v Ku-ring-gai Municipal Council

JUDGMENT

1 Appeal No 11524 of 2003 is under s 97 of the Environmental Planning and Assessment Act 1979, and against the deemed refusal by Ku-ring-gai Municipal Council (the council) of an integrated development application to demolish the existing dwelling and to erect a detached dual-occupancy comprising two dwellings each with attached double garages at Lot 5, DP 21091, being No 37 Bareena Avenue, Wahroonga. 2 Appeal No 10163 of 2004 is under s 97 of the Environmental Planning and Assessment Act 1979, and against the deemed refusal by the council of an integrated development application to erect a new dwelling house at Lot 4, DP 263707, being No 39 Bareena Avenue, Wahroonga. 3 I visited both lots in company with the parties on the morning of the first day of the hearing. 4 I have concluded that the dwelling house application on Lot 4 should fail as it is proposed on 'protected land' under the Rivers and Foreshores Improvement Act 1948, (RFI Act), and would provide insufficient landscaping along the edge of 'protected waters' being the Spring Gully Creek that runs along the western side of Lot 4. 5 The detached-dual occupancy comprising two dwellings each with attached double garages on Lot 5 would be of satisfactory merit and is approved subject to conditions including general terms of approval similar to those required by the Department of Infrastructure Planning and Natural Resources, (DIPNR) for Lot 4. The land 6 Both lots of land are situated on the northern side of Bareena Avenue close to the western end of the cul-de-sac in that avenue. The land comprising Lot 5 or No 37 Bareena Avenue is regular in shape with an area of 929m2, and has a frontage to Bareena Avenue of 15.24m and a depth of 60.96m. This parcel of land slopes down to the north from the kerb within the road reserve to the southern (street) boundary about 2m and then slopes down from the southern boundary to the northern boundary about 2.7m. 7 The land comprising Lot 4 or No 39 Bareena Avenue is triangular in plan with a frontage to Bareena Avenue of some 18.87m and a depth of 72.79m and an area of some 734.8m2. The creek bounds the hypotenuse. 8 Lot 4 is close to the F3 Freeway about 10m to the west. 9 In the 'Ku-ring-gai Visual Character Study' both lots are described as being located within an area characterised by single dwellings on single lots with the majority of construction being from the period between 1920-1945. A mix of architectural styles and periods are evident within the streetscape. 10 Development within Bareena Avenue mainly comprises of residential dwellings on large lots. Relevant planning controls State Environmental Planning Policy No 53—Metropolitan Residential Development, (SEPP53) 11 Under s 3 of SEPP53 the aims are: (1) This Policy aims to encourage the provision of housing in metropolitan areas that will: (a) broaden the choice of building types and locations available in the housing market, and (b) make more efficient use of existing infrastructure and services, and (c) reduce the consumption of land for housing and associated urban development on the urban fringe, and (d) be of good design. (2) These aims are to be achieved: (a) by establishing planning controls that will provide opportunities for a variety of housing types, such as multi unit housing or multi unit housing combined with development for any other purpose to be developed in areas the councils of which have not adopted residential development strategies approved by the Minister, and (b) by setting out design principles that, if followed, will achieve built form that responds to the characteristics of its site and location, and (c) by encouraging councils to prepare and adopt residential development strategies and supporting local environmental plans and policies that will achieve those aims, and by allowing local government areas to be exempted from the whole or parts of this policy when those strategies and plans are in place. (3) In addition, this Policy aims to simplify and streamline certain aspects of the planning system relating to residential development: (a) by revising the provisions in a number of State environmental planning instruments to improve their operation, and (b) by restating the revised provisions of those environmental planning instruments in a single policy written in a manner that is easy to understand. 12 Part 3 of SEPP53 applies to dual occupancy development and cl 15 sets out the objectives of this Part: (a) to create opportunities for two dwellings to be developed on a single allotment of land, and (b) through the other provisions of this Policy, to ensure that dual occupancy development is: i. designed and assessed with a full understanding of the opportunities and constraints of each site, and ii. designed and assessed having adequate regard for the design principles contained in Part 5. 13 Clause 19 of SEPP53 provides development standards including that the site area for two detached dwellings shall be a minimum of 600m2 and that the FSR of all dwellings proposed should not exceed 0.5:1. The proposal for Lot 5 complies with both standards. 14 Clause 20 of SEPP53 provides that the consent authority may not require more than one car space per dwelling of 150m2 or less or 2 spaces per dwelling of greater floor area. 15 Clause 21 of SEPP53 does not specifically permit subdivision of two dwelling sites, but it does not preclude subdivision if otherwise permitted by another instrument. In this regard, KPSO requires a minimum site area for the erection of a dwelling house, and does not contain minimum subdivision standards. Due to this anomaly, subdivision of the proposed dual occupancy would be permitted. 16 Part 5 of SEPP53 contains the 'Design Requirements' that are called up by cl 15(b)(ii). 17 Clause 32(b) of SEPP53 provides guidance for visual and acoustic privacy: "The proposed development should, where practicable, consider the visual and acoustic privacy of neighbours in the vicinity and residents by: i. appropriate site planning, the location and design of windows and balconies, the use of screening devices and landscaping, and ii. ensuring acceptable noise levels in internal living and sleeping areas of new dwellings. 18 Clause 32(d) of SEPP53 provides guidance for stormwater: "The proposed development should, where possible: i. control and minimise the disturbance and impacts of stormwater runoff on adjoining properties and receiving waters, and ii. include, where practical, on-site stormwater detention or re-use for second quality water uses, and iii. be designed with regard to the scope for on-site infiltration of water. 19 Clause 32(f) of SEPP53 provides guidance for accessibility: The proposed development should, where appropriate: i. have convenient, obvious and safe pedestrian and bicycle links from the site that provide access to public transport services and local facilities, and ii. provide attractive, yet safe, environments for pedestrians,' cyclists and motorists with convenient access and parking for residents and visitors, and iii. where feasible, involve site layout and design that enables people with a disability to access, on one continuous accessible path of travel, the street frontage, car parking, and all buildings, facilities and open spaces within the site. 20 At the conclusion of the hearing there was no issue between the parties in this regard that could not be conditioned. State Environmental Planning Policy No 55 - Remediation of Land, (SEPP55) 21 Under s 2 the object of this Policy is: (1) The object of this Policy is to provide for a Statewide planning approach to the remediation of contaminated land. (2) In particular, this Policy aims to promote the remediation of contaminated land for the purpose of reducing the risk of harm to human health or any other aspect of the environment: (a) by specifying when consent is required, and when it is not required, for a remediation work, and (b) by specifying certain considerations that are relevant in rezoning land and in determining development applications in general and development applications for consent to carry out a remediation work in particular, and (c) by requiring that a remediation work meet certain standards and notification requirements. 22 There is no issue between the parties in respect of this matter. Ku-ring-gai Planning Scheme Ordinance, (KPSO) 23 The land is zoned 2(c) Residential under the KPSO and under the land use table to cl 23, dwelling houses are permissible as Column 1 uses, "without consent". All forms of multi dwelling development are prohibited. 24 The general aims as set out in Sch 9 of the KPSO for residential zones under the Planning Scheme are: (a) To maintain and where appropriate, improve the existing amenity and environmental character of Residential zones; and (b) To permit new residential development where it is compatible with the existing environmental character of the locality and has a sympathetic and harmonious relationship with adjoining development.