Aksa Property Developments Pty Limited v Ku-ring-gai Council [2004] NSWLEC 585

Land and Environment Court of New South Wales

CITATION : Aksa Property Developments Pty Limited v Ku-ring-gai Council [2004] NSWLEC 585 APPLICANT: PARTIES : Aksa Property Developments Pty Limited RESPONDENT: Ku-ring-gai Council FILE NUMBER(S) : 10823 of 2004 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Good design particularly streetscape under SEPP53 - Visual privacy - Visual bulk - Solar access - Tree loss - and - Resident submissions. LEGISLATION CITED: State Environmental Planning Policy No 53 - Metropolitan Residential Development, (SEPP53) - Ku-ring-gai Planning Scheme Ordinance, (KPSO) - Development Control Plan 43, (DCP43) - Development Control Plan 40, (DCP40) - Development Control Plan 47, (DCP47) - Council's Dual Occupancy Control Code, (Code) - Environmental Plannign and Assessment Act 1979, ss 79C and 97 CASES CITED: DATES OF HEARING: 21/10/2004 EX TEMPORE 10/21/2004 JUDGMENT DATE :

APPLICANT: Mr S Kondilios, solicitor SOLICITORS: Maddocks LEGAL REPRESENTATIVES: RESPONDENT: Mr P Rigg, solicitor SOLICITORS: Deacons

JUDGMENT: 12

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

21 October 2004

10823 of 2004 - Aksa Property Developments Pty Limited v Ku-ring-gai Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Ku-ring-gai Council (the council) of a development application to demolish the existing dwelling and to construct two x two-storey dwellings as a detached dual occupancy development at Lot A in DP 376664 being No 39 Bannockburn Road, Turramurra. 2 I visited the land in company with the parties on the morning of the on-site hearing. 3 I have concluded that the application may be approved when considered under s 79C of the Environmental Planning and Assessment Act 1979. The land 4 The land is situated on the eastern side of Bannockburn Road, and is a rectangular shaped parcel of land having a total area of 1,103m2, and a frontage to Bannockburn Road of 28.955m with a dual frontage. The land is generally level, with a slight cross-fall of 2m from south east to north-west. 5 Erected on the land is a single-storey brick and tile dwelling setback 12m to 15m from the front boundary. There is a detached garage located in the far southeastern corner of the property onto Reservoir Road. The front fence comprises a low timber post and rail fence about 400mm in height. 6 Mature and semi-mature trees grace the front and rear of the land. Two mature Quercus robur (English Oak) trees are located on the front boundary. The most significant of these is Tree 2, which is centrally located along the Bannockburn Road frontage. It is 13m in height with a 30m spread and a trunk diameter at breast height, (DBH) of 800mm. The other Oak (Tree 1) is located in the northwestern corner of the front boundary and is 13m high with a 13m-canopy spread and a DBH of 450mm. Both trees are significant elements in the streetscape. 7 The locality is typically low-density residential. The dwellings situated on either side of the subject land are single-storey in well-established gardens. Reservoir Road at the rear on its western side presents as a back lane of paling fences and garages, however, on the eastern side it has more the character of front gardens. 8 The Visual Character Study of 1995 categorises the area as one of single dwellings on single lots, with the majority of construction being within the period of 1920 to 1945. A mix of architectural styles and periods are evident within the wider streetscape. 9 The area presents average lot sizes and fencing arrangements, vehicle accommodation and garden styles so that new buildings and renovations should be designed to address the streetscape character. Relevant planning controls State Environmental Planning Policy No 53 - Metropolitan Residential Development, (SEPP53) 10 Under s 3(1) of SEPP53 the aims are 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.