Owen Haviland Pty Ltd v Ku-ring-gai Council [2005] NSWLEC 354

Land and Environment Court of New South Wales

CITATION : Owen Haviland Pty Ltd v Ku-ring-gai Council [2005] NSWLEC 354

APPLICANT Owen Haviland Pty Ltd

PARTIES : RESPONDENT Ku-ring-gai Council

FILE NUMBER(S) : 11589 of 2004

CORAM: Bly C

KEY ISSUES: Development Application :- Demolition - construction of a new two storey attached dual occupancy - privacy - setbacks - overshadowing - loss of views - landscaping - streetscape

State Environmental Planning Policy No. 53 LEGISLATION CITED: Ku-ring-gai Planning Scheme Ordinance Dual Occupancy Development Control Code

DATES OF HEARING: 17/06/2005 EX TEMPORE JUDGMENT DATE : 06/17/2005

APPLICANT Mr O Haviland, architect

LEGAL REPRESENTATIVES: RESPONDENT Mr P Rigg, solicitor SOLICITORS Deacons

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Bly C

17 June 2005

11589 of 2004 Owen Haviland Pty Ltd v Ku-ring-gai Council

JUDGMENT

1 This appeal relates to development application No. 420/03 which is for the demolition of an existing dwelling house and the construction of a new two storey attached dual occupancy development under State Environmental Planning Policy No. 53 ("SEPP 53"). 2 The application was lodged under SEPP 53 because dual occupancy development is not permissible under the Residential 2C Zone which applies to this site under the Ku-ring-gai Planning Scheme Ordinance 1971 ("the PSO"). 3 The site is situated at 143 Mona Vale Road, St Ives. It is triangular in shape with a frontage to Mona Vale Road of about 27 m and a total area of about 608 sq m. 4 There are provisions of SEPP 53 that are relevant to this application particularly requiring that development of this kind be of a good design and is subject to certain design principles to which I will later refer. I do not understand that there are any particularly relevant provisions in the PSO, but there are relevant provisions in council's Dual Occupancy Development Control Code ("the Code") which was adopted by the council in 2003 and I will come to those provisions later. I accept that the code has been prepared, notified and adopted as if it were a development control plan and I will treat it as such. 5 The application was notified and one objection was received from the property at 42A Pentecost Avenue, St Ives. Issues of concern raised in that submission relate to matters of privacy, setbacks, overshadowing and loss of views. 6 Council subsequently considered an officer's report which recommended that the application be refused for a number of reasons, and these reasons formed the basis for the council's decision to refuse it. 7 The applicant resubmitted the application for a s 82A review which was dealt with in a further planning report prepared by a council officer. That report again recommended that the application be refused for nine reasons, which reasons, plus bushfire safety effectively became the issues in this case. 8 Evidence was provided for the assistance of the Court by the Court- appointed expert town planner, Ms K Gordon. Whilst he did not give evidence as such, Mr O Haviland, the architect for the proposal provided some assistance to me in relation to my understanding of the design under consideration. 9 In her report, Ms Gordon provides a comprehensive analysis of all of the issues. She deals with the concerns raised by the objector, as well as other possible impacts that might have resulted from this development upon adjoining properties and concluded that none of these concerns are of determinative significance. She also deals with the issues relating to the proposed retaining wall, the fill and the elevated driveway and as a result of changes to the design finds those issues also to be satisfactory. 10 Similarly changes to the design have resulted in her not being concerned about the amount of daylight available to the interior of the proposed dwellings and the ability to manoeuvre cars into and out of the garages so as to be able to enter and leave the site in a forward direction. 11 I particularly note her analysis of the carparking requirements which are not met by this proposal, being theoretically deficient by one carparking space. The amount of excess floor space involved that generates the requirement for the additional carparking space is, and I agree with her analysis in this regard, not sufficient to require an additional parking space. 12 This leaves the two issues which were the focus of the remaining concerns for the council as expressed by Mr Rigg in his submissions. 13 The first issue involves the matters of setbacks, landscaping and streetscape. In this regard it is clear that the proposal fails to comply with the 9 m setback requirement in the Code. Ms Gordon does not accept and I agree with her, that in this case the 9 m requirement needs to be strictly imposed taking into account the nature of surrounding development and the existing topography and existing dwelling house on the site. I also agree with her that the design of the proposed building would not, even absent landscaping, be a dominant element in the streetscape. 14 However, Ms Gordon explained that, in effect, the failure to meet the objectives of the setback requirement was particularly problematical in this case. The relevant objectives relate to the enhancement of streetscape quality and the provision of sufficient areas for soft landscaping. In this regard she pointed out that the character of the streetscape in Mona Vale Road in the vicinity of the site involved open setback areas and canopy trees and it was the absence of the provision of canopy trees in the setback area that resulted her in having a fundamental concern about the proposal. As she said in her report: "The critical streetscape feature of the other dwellings in the locality is missing from the proposal, being the existence of canopy trees forward of the building line. It is the presence of canopy trees forward of and to the rear of dwellings along this portion of Mona Vale Road that creates the character of the streetscape and the lack of a larger front setback removes the potential to continue this character on the subject site".