Nader v Ku-ring-gai Council [2006] NSWLEC 416

Land and Environment Court of New South Wales

CITATION : Nader v Ku-ring-gai Council [2006] NSWLEC 416

APPLICANT George and Brigette Nader PARTIES : RESPONDENT Ku-ring-gai Council

FILE NUMBER(S) : 11094 of 2005

CORAM: Murrell C

KEY ISSUES: Appeal :- Consent Orders, demolish dwelling, construction of a dual occupancy

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

DATES OF HEARING: 02/02/2006, 22/03/2006 and 04/05/2006

EX TEMPORE JUDGMENT DATE : 05/04/2006

APPLILCANT Mr M. Arch, solicitor SOLICITORS McKees Legal Solutions LEGAL REPRESENTATIVES: RESPONDENT Mr A. Hudson, solicitor SOLICITORS Wilshire Webb

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Murrell C

4 May 2006

11094 of 2005 George and Brigette Nader v Ku-ring-gai Council

JUDGMENT 1 This matter has come back before me this morning as a continuation of proceedings for consent orders previously handed up to the Court. However, an adjournment was necessary because the Court's Practice Direction for consent orders was not satisfied. 2 The subject property is known as No. 33 Warragal Road, Turramurra. The proposal is to demolish the existing dwelling and to construct an attached dual occupancy on the subject property. 3 The appeal was lodged with the Court before the matter was determined by the Council. The Council subsequently determined the application by way of granting approval to the dual occupancy, subject to a number of conditions. The applicant's appeal is then against a condition concerning a landscape bond. However, when the parties came before the Court, it was by way of consent. 4 The Court expressed concern about the landscape plan, in terms of the outcomes of the landscaping and some of the provisions of the landscape plan. Subsequently an amended landscape plan was provided, and the issue of the bank guarantee or the cash bond is not required in my assessment and the bond should not be imposed, as the outcomes are achieved through more appropriate conditions and as such the parties have now come before the Court with agreed conditions that now satisfy the Court an appropriate landscaped setting is to be provide commensurate with the area and to ensure the character of the area is retained by the development of a dual occupancy development. 5 Dual occupancy development is permissible in terms of the planning regime, by virtue of State Environmental Planning Policy 53 for dual occupancy that has been exercised in this instance. The Ku-ring-gai Local Environmental Plan, known as the Ku-ring-gai Planning Scheme Ordinance, contains a schedule at the rear, known as Schedule 9, in terms of the objectives for residential areas. 6 The Court is satisfied and there is no reason as to why the consent orders should not be entered into. In terms of the Court's Practice direction, the parties or in particular the respondent, was required to advise the objectors, who had originally expressed concerns about the Development Application and who were unaware of the process whereby the matter was now before the Court as consent orders. I am now satisfied, with the documentation that has been provided to me today in terms of the letters of notification and the two responses that have been received from adjoining property owners, that the provisions of the Practice direction of notifying objectors has now been complied with. 7 The Court is in receipt of two letters from adjoining property owners, one being Mr David Tunney, and he has advised the Court that there is no objection to the new Development Application, however he notes that approval is subject to certain conditions being met, including adequate drainage. My understanding is that an inter-allotment arrangement will be needed and that this is to be by way of negotiation between the applicant and the adjoining owners. 8 The Court notes that the conditions of consent require a 'deferred commencement', and a 'deferred commencement' condition requires a drainage easement/inter-allotment easement to be provided in order that the subject site is appropriately drained to Council's stormwater system (this condition is to be satisfied prior to the consent operating). That is the drainage easement must be obtained before the development can proceed. Condition 3 in Schedule A in the deferred commencement states; "Prior to operation of the consent, the construction of the required inter-allotment drainage system must be completed in full. The designing engineer or equivalent professional engineer must supervise the works. At the completion of the works the following shall be submitted to Council for approval" - which includes the inter-allotment design documentation et cetera. 9 The other objection received as a result of Council's notification to the former objectors, is from Ms Jodie Burke and Mr Stephen Jeffery of No. 37 Warragal Road, and they express concern about the open stormwater course which runs through their property and their main concerns with the development are the increased stormwater run-off and the lack of on-street parking space in Warragal Road and the increased risk of vehicle accidents. They also are concerned about the proposed dual occupancy being a precedent for further dual occupancies in the area. In my assessment the proposal is permissible by virtue of SEPP 53, and it is not a precedent as every dual occupancy development application must be considered on its own merits. 10 With respect to the stormwater run-off, I am satisfied in terms of Council's deferred commencement condition, that this is not an issue that would warrant refusal, and with respect to carparking, it is noted that the carparking provision as advised by the respondent's solicitors, satisfies Council's requirements for carparking, and while all development may create additional traffic, the relevant test is whether the additional increase in traffic generation and carparking demand is a matter that would warrant refusal. In my assessment I am satisfied that the proposed development should not be refused on the basis of carparking or traffic generation. 11 The objectors' concerns and their letters have been carefully considered by the Court in granting the consent orders this morning. 12 On the basis of the evidence to the Court and the documentation that has now been provided in terms of the amended plans and the amended landscape plan, I am satisfied that the Court should not refuse the consent orders as agreed to between the parties. 13 As pointed out this morning, originally the matter came before the Court as consent orders and the only contested issue was over the landscape bond, condition No. 58 in the original approval of Council. Those issues have been satisfied in the Court's assessment, as well as the requirements for the objectors to be advised that the Council is now entering into consent orders. Bearing in mind that the Council, following the appeal, determined the application and granted consent, subject to those conditions. 14 The consent orders handed up to the Court this morning include a set of agreed amended conditions, to reflect the concerns of the Court and other matters arose during proceedings before the Court. 15 Therefore on the basis of my assessment in this matter, the formal orders of the Court are, by consent. 1. The appeal in respect of the property known as No. 33 Warragal Road, Turramurra is upheld; 2. The Development Application submitted to Ku-ring-gai Council and as amended and shown in the landscape plan at exhibit D and the architectural plans at exhibit A, is approved, subject to a deferred commencement, and the other conditions contained in annexure A; 3. The exhibits, with the exception of exhibits A, D and 14 are returned to the parties.