Antony Katter v Ku-ring-gai Council [2005] NSWLEC 310

Land and Environment Court of New South Wales

CITATION : Antony Katter v Ku-ring-gai Council [2005] NSWLEC 310

APPLICANT: Antony Katter PARTIES : RESPONDENT: Ku-ring-gai Council

FILE NUMBER(S) : 10293 of 2005

CORAM: Watts C at 1

Development Application :- Character of the locality and streetscape KEY ISSUES: signage and car parking

LEGISLATION CITED: Ku-ring-gai Planning Scheme Ordinance 1971, (KPSO) - Environmental Planning and Assessment Act 1979, ss 79C and 106-8.

DATES OF HEARING: 09/06/2005 EX TEMPORE JUDGMENT DATE : 06/09/2005

APPLICANT: Mr S Klinger, solicitor SOLICITORS: Steven Klinger LEGAL REPRESENTATIVES: RESPONDENT: Mr C T Drury, solicitor SOLICITORS: Phillips Fox

JUDGMENT:

Appeal No: 10293 of 2005

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

9 June 2005

10293 of 2005 - Antony Katter v Ku-ring-gai Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Ku-ring-gai Council (the council) to refuse a development application to alter and add to an existing service station including a new office building at Part Lot A DP 412102 being No 544 Pacific Highway, Killara. The parties agreed that this site has existing use rights however, some works are proposed on the adjoining land to the south known as Part Lot A DP 338208, being No 542 Pacific Highway, Killara which that parties agreed does not have existing use rights confirmed in relation to the service station accessway. 2 I visited the land in company with the parties during the on-site hearing. 3 I have concluded that approval may be granted to the proposed works on No 544 Pacific Highway, provided the car parking spaces removed as a result of the erection of the new office and the sign are provided in a mechanical stacking device at the rear of the land. The land 4 The land is situated on the northwestern side of the Pacific Highway. 5 The site at No 544 Pacific Highway is generally rectangular in shape, with a frontage of 26.14m and depth of 34.28m and an area of some 938.8m2. The site falls from the highway down towards the Killara Golf Club at the rear. Erected on this site is a service station with ten (10) workshop bays and car repair workshop. 6 Abutting to the south is No 542 Pacific Highway that was not identified on the printed form of the development application, although works are proposed here that have been described in the statement of environmental effects and the accompanying plans. This site has an area of some 909.4m2 and is trapezoidal in shape with a frontage of 27.48m and a depth on the northwestern side of 34.28m and on the northeastern side of 38.38m. This site falls from the street to the rear southern corner. Erected on this site is a single-storey and two-storey dwelling with a concrete apron at the front currently used for access and parking. No 542 Pacific Highway has a well-vegetated front setback and lends a landscaped character to the highway. 7 The site at No 544 Pacific Highway is within a residential zone that has the character of a commercial and retail precinct. Nearby are single-storey and two-storey dwellings in landscaped front gardens. Opposite the site are residential flat buildings and single dwellings, in landscaped settings. 8 Along the northern side of the subject site is the 'Black Stump' restaurant at No 552 Pacific Highway, a pool shop, entry to Killara Golf Club. There is residential development further to the north. A right of carriageway provides shared access to the workshop and the restaurant. Relevant planning controls Ku-ring-gai Planning Scheme Ordinance 1971, (KPSO) 9 Under the provisions of the KPSO the site is zoned Residential 2(d3) and the proposal is permissible with consent. 10 Other planning controls include: · State Environmental Planning Policy No 11 - Traffic Generating Development; · Development Control Plan 43 Car Parking · Development Control Plan 40 Waste Management · State Environmental Planning Policy No 55 - Remediation of Land · Environmental Planning and Assessment Act 1979, ss 79C and 106-8. The proposal and its history 11 Development application No 76/05 was lodged with the respondent council on 1 February 2005, to alter and add to the existing service station including a new office at No 544 Pacific Highway, Killara. However, it was not until 13 April 2005 when the applicant sent in a cheque for fees needed for integrated development that processing formally commenced. On 26 April 2005 the RTA confirmed that the proposal is not integrated development. 12 The proposal is described in plans prepared by Architex, dated 22 December 2004 Drawings Nos DA01 – 8. 13 It is also proposed to construct an office, fence and landscaping with signage at No 544 Pacific Highway and to widen an existing driveway, build a retaining wall, and provide new fencing, at No 542 Pacific Highway. The proposal includes the following: 14 On the subject site, 544 Pacific Highway it is proposed to: · Demolish the shed to the west of the existing office and reception area; · Add an office administration area at this level with a glass wall behind steel roller shutters facing the highway. · Add stairs to give access to the lower workshops. · Alter toilet facilities; · Add metal sun-louvres on all the windows to the south at this level. · Add access to the lower floor workshop is provided by stairs; · Widen the awning over the bowser area; · Remove an existing tank; · Add a roof terrace above the office; · Add signs to the awning, and a pole sign at the front of the site; and · Add a timber screen beside the right of way beside the 'Black Stump'.