Land and Environment Court of New South Wales Spence v Ku-ring-gai Council [2005] NSWLEC 36 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANTS G W & RP Spence PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 11148 of 2004 CORAM: Nott C Development Consent :- SEPP 5 development for seven apartments - modification sought of council's development consent - visual privacy issues - noise from garbage collection - benefits of the on-site hearing procedure KEY ISSUES: LEGISLATION CITED: Environmental Planning and Assessment Act s 96 DATES OF HEARING: 8 & 22 February 2005 DATE OF JUDGMENT: 02/22/2005 EX TEMPORE JUDGMENT DATE : 02/22/2005 APPLICANTS Mr G McKee, solicitor SOLICITORS McKees Solutions LEGAL REPRESENTATIVES: RESPONDENT Mr P Rigg, solicitor SOLICITORS Deacons JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Nott C 22 February 2005 11148 of 2004: G W and R P Spence v Ku-ring-gai Council JUDGMENT 1 Pursuant to the Court's practice direction, a well-prepared Amended Statement of Basic Facts (by the council's executive planner Kerrin Lithgow) was filed. That statement sets out the relevant facts relating to the council's development consent dated 23 December 2003 for a seven-unit development under State Environmental Planning Policy No. 5 – Housing for Older People or People with a Disability to be erected at 40-42 Cowan Road, St Ives. Details are also given of the proposed modifications that are the subject of the present appeal, the council having refused the modification application. 2 Amended plans were submitted that subsequently resolved many of the issues. There were still some matters, though, of concern to the immediately adjoining neighbours relating to visual privacy and relating to noise likely to be generated from the location of the proposed garbage storage and collection area. 3 In accordance with s 34B of the Land and Environment Court Act 1979, this appeal concerning the proposed modified development was heard at the site. (In fact, by agreement, the adjoining neighbours who objected to the proposed modifications, Mr & Mrs McLintock who live at 28 Cowan Road, provided the venue for the hearing.) 4 This case confirms the view that I have formed that the procedure for an on-site hearing is a welcome addition to the range of procedures available in the Land and Environment Court. The on-site hearing is particularly useful where, as in the present case, the legal representatives were flexible in their approach to resolving issues. The on-site hearing also enabled the issues relating to privacy and overlooking to be more readily dealt with and probably more appropriately dealt with than if there was merely a view and the proceedings then adjourned for hearing in Court. 5 As a result of the on-site hearing, some further amendments were made by agreement to the modified plans, and these plans have been tendered in Court before me today as exhibit C. I have directed my attention particularly to those matters that were of concern to the council and to the objectors at the on-site hearing and which in my opinion have now been satisfactorily resolved by these newly submitted plans. 6 Certain windows in the proposed development will be treated to provide privacy. There will be privacy screens with slats angled at either 45 or 30 depending on their location. These vertical privacy screens will be such that the slats will overlap and there will be no gaps for a line of sight perpendicularly to the screens. The privacy screens will either be along the side of a balcony or across certain windows. 7 The main concern of the objecting neighbours at 28 Cowan Road related to noise from garbage collection. The proposed modification plans originally would have positioned the bins where there would have been noise produced affecting the amenity of three bedrooms at 28 Cowan Road. At the site, I heard brief evidence from the council's manager of waste, Mr Wright. He saw no reason why the council's contractor could not access a relocated position of the garbage bins which would be within the basement. He also indicated that the owner of a site or an adjoining neighbour could request the council to have garbage collection for the proposed residential units to take place after 6.30 am. The applicant agreed to modify the location of the bins. The relocated position of the bins will also be of benefit to future residents in the proposed development. 8 In all the circumstances, it is appropriate to give the Court's approval to these amended plans exhibit C, subject to the conditions that have now been agreed. 9 Accordingly, the orders of the Court are: 1. The appeal is upheld. 2. The Council's conditions in schedule B of the development consent dated 23 December 2003 re 40-42 Cowan Road, St Ives are modified as follows: (1) Condition 1(b) is amended to read: "The development is to be in accordance with Development Application No. 1773/02 and Development Application plans prepared by Noosphere Architecture Development Design, Drawing Nos. DA02C, DA03E, DA04E, DA05E, DA06D, DA07B, DA08F and DA09C and Landscape plan prepared by Paul Scrivener reference 2002/701/DA1 and DA2 issue D dated 15 December 2004. If there is any conflict between the architectural and the landscape plans, the architectural plans will prevail." (2) Condition 68(c), Line 3, is amended by deleting the words "obscure glazing" and replacing with "30 degree fixed louvres externally mounted to the full extent of the windows as shown on the architectural plan". (3) Condition 68(d) is amended to read: "A 1.7m high masonry wall is to extend from the planter to Bedroom 1. A 45-degree fixed vertical louvre screen to 1.7m above finished floor level (FFL) is to be provided from that masonry wall to within 900mm of the planter edge which encloses the balcony adjoining Bedroom 1. The south facing Bedroom 1 ensuite and Bedroom 2 windows are to be fixed translucent glazing to protect the privacy of the balconies of No. 28 Cowan Road." (4) Condition 68(e) is deleted. (5) Condition 68(f) is amended to read: "The balcony to dwelling 6 is to be provided with 45 degree fixed louvres to a height of 1.7m above the FFL of balcony as shown in the architectural plans to ensure the privacy of the rear yard of No. 28 Cowan Road." (6) Condition 68 is amended by adding at the end of the condition the words "All fixed louvre screens must achieve 100% privacy and prevent overlooking at an angle of 90 degrees from the common boundary." (7) Condition 71 is amended as follows: (a) Add the words "1 m long and" before the words "1.6 m high privacy screen". (b) Delete. (c) Delete. (8) Condition 72 to be amended by deleting the words "a glazed panel 200mm in width for either the entire height of the door or alternatively from a height of 1.0 metre from the finished floor level to at least 1.8 metres above the finished floor level. Additionally each main entrance shall be provided with". (9) Condition 61 is deleted. (10) Condition 44 is deleted. (11) Condition 79, Note 1, is amended by deleting the words "prior to Construction Certificate" and replacing with the words "prior to commencement of works". 3. The exhibits, other than exhibits A and C, may be returned. _____________ A J Nott Commissioner of the Court rjs 10. On 20 May 2005 the Court ordered by consent that: Pursuant to Pt 10 r 7 of the Land and Environment Court Rules 1996, the Court's Order on 22 February 2005 in this appeal is amended as follows— 1. In order 2(1), delete from condition 1(b) the words "Noosphere Architecture Development Design" and insert instead "Mellor Gray Architects". 2. In order 2, after (11) add— "(12) Condition 69 is deleted." -Commissioner Nott. 02/03/2005 - (10) and (11) added to order 2 at the request of both parties. - Paragraph(s) 9. 20/05/2005 - see order of 20 May 2005 immediately above - Paragraph(s) 10 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.