Land and Environment Court of New South Wales CITATION : Robert Hart v Ku-ring-gai Council [2004] NSWLEC 32 APPLICANT Robert Hart PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 11014, 11016-11018 of 2003 CORAM: Hussey C KEY ISSUES: Development Application :- SEPP 53 Development - Overdevelopment - character of area - Loss of amenity to neighbours Environmental Planning and Assessment Act LEGISLATION CITED: State Environmental Planning Policy No. 53 Ku-ring-gai Planning Scheme Ordinance CASES CITED: DATES OF HEARING: 05/02/2004 DATE OF JUDGMENT: 02/12/2004 APPLICANT Mr G McKee, solicitor SOLICITORS McKees Legal Solution LEGAL REPRESENTATIVES: RESPONDENT Mr R Graham, solicitor SOLICITORS Abbott Tout JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 11014, 11016-11018 of 2003 Hussey C 12 February 2004 Robert Hart Applicant v Ku-ring-gai Council Respondent Judgment Background. 1. These proceedings involve four appeals concerning a SEPP 53 development at No 4 Blaxland Road, Killara. The development is for a four stage development of the property, to ultimately create four new houses, with subdivision into Torrens Title. 2. For the appeal, several issues were identified and some of these referred to the adequacy of details of the proposal. Following a lodgement of further details and conferencing between the respective experts, all planning issues were resolved. 3. However, a considerable number of objections were submitted by the local residents. These objections mainly concern the impact of the proposal on the neighbourhood and the adjoining properties, in terms of the scale of development and visual and acoustic impacts. 4. The parties agreed that the four appeals be heard concurrently. The property 5. The subject property is described as Lot 26, Section 3, DP 641, Killara. It is rectangular in shape with a 22.1 m frontage to the southern side of Blaxland Road. 6. The site has a total area of 1764 m2. 7. At present there is an existing single storey brick dwelling house on the site. A number of trees are scattered around the site. 8. The surrounding development consists mainly of a mixture one and two-storey residential dwellings, set in large landscaped grounds, with some having tennis courts. The proposal. 9. This proposal comprises: Stage 1 The demolition of the existing development on the site and erection of 2 dwelling houses in the form of a detached dual occupancy development pursuant to State Environmental Planning Policy No. 53 - (SEPP 53) - Metropolitan Residential Development . These houses are designated as House 1 and House 4. Stage 2 Subdivision of the Stage 1 dual occupancy development into 2 Torrens Title allotments, comprising Lot 260 with an area of 817.4 m2 and Lot 261 with an area of 946.7 m2. Stage 3 Erection of 2 additional dwelling houses pursuant to SEPP 53 in the form of detached dual occupancy development on each of Lots 260 and 261 created by the Stage 2 subdivision. These houses are designated as House 3 and House 2. Stage 4 The Torrens Title subdivision of each of the detached dual occupancy developments in the Stage 3 of the development, so as to create: Lot 1 403.6 m2, Lot 2 413.8 m2, Lot 3 480.2 m2, Lot 4 466.5 m2. 10 . The overall development is described as containing the following components: House 1 floor area of 151.1 m2, House 2 floor area of 155.1 m2, House 3 floor area of 156.0 m2, House 4 floor area of 157 m2. Total floor area 619.2 m2 Site area 1764 m2 Floor space ratio 0.35: 1. Total driveway area 413.7 m2 Total built up on area 1063.8 m2 (60%) Total open space 907.9 m2 (51%). 11 . The dwelling houses are all part single and two-storey height. Access to House 1, which fronts on to Blaxland Road is via a separate vehicle crossing, leading to a double garage. The access for the other 3 houses is via a common driveway along the western boundary of the property, alongside No. 6 Blaxland Road. 12 . The development proposes the construction of an On-Site Detention System (OSD), under the driveway at the north-western corner of the property. Planning Controls State Environmental Planning Policy No. 53 (SEPP 53) – Metropolitan Residential Development. 13 . This is the prevailing control, which applies to some lands where the zoning allows residential development. Its stated aims include: " … to encourage the provision of housing in the metropolitan areas that will: (a) broaden the choice of building types and locations are available in the housing market, and (b) make more efficient use of the 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 . 14 . The aims of SEPP 53 are achieved by: (a) by establishing planning controls that will provide opportunities for a variety of housing types, such as multi unit housing or multi unit housing combined with development for other purposes to be developed in areas the councils of which have not adopted residential development strategies approved by the Minister, and (b) by setting out design principles that, if followed, will achieve built for that response to the characteristics of the site and location, and … 15 . Clause 31 requires the preparation of a site analysis for consideration. Then clause 32 provides a number of design principles. Ku-ring-gai Planning Scheme Ordinance (KPSO) 16 . The site is zoned Residential 2(c) under this control. Subdivision is permissible with the consent of council in this zone. The evidence 17 . Detailed evidence on behalf of council was presented by: Mr L. Doyle, consulting town planner and his report is Exhibit 11, Ms. C. Brown, consulting town planner and her report is Exhibit 10. Mr R. Hart, bushfire consultant and his report is Exhibit 2, Ms A. Leyton, neighbour from 6 Blaxland Road, Mr G. Buwarda, neighbour 1 Manning Road, Mr G. Barnes, neighbour A7 Manning Road, Mr N. Hansra, neighbour 11 Blaxland Road. 18 . Evidence on behalf of council was presented by: Mr N. Kennan, consulting town planner and his report is Exhibit K, Mr S. Pittenrigh, consulting landscape architect and his report is Exhibit L. Mr D. Ford, consulting arborist and his report are Exhibits 3 and M. Conclusions. 19 . Having considered the evidence, the submissions and undertaken a view, I consider this application merits conditional consent. In this case, the prevailing control is SEPP 53, which encourages a variety of housing choice that reduces land consumption. Inevitably that means that there will likely be some change in character to existing low-density residential areas, due to the increased density allowed. 20 . In accordance with the provisions of SEPP 53, a detailed site analysis has been undertaken, which I accept is reasonable. From that, the proposal now before the Court demonstrates reasonable compliance with the relevant design principles, as noted in the joint conference report of the planners (Exhibit 12). 21 . Notwithstanding this compliance, a considerable number of objections was made to the proposal by local residents. In summary, they relate to over development of the site, out of character with the neighbourhood, adequacy of road access and impact on adjoining properties. 22 . The overdevelopment concerns are that the proposed 4 houses are excessive in this neighbourhood. I accept that the change in character will be more noticeable here, because of the setting with houses on large landscaped lots, generally in excess of 1500 m2. However the proposal is of a form of development encouraged by SEPP 53 and it demonstrates reasonable compliance with the stated density provisions. Therefore when appropriate weight, i.e. determinative weight is given to SEPP 53, I accept the planners conclusion that this development is appropriate, rather than accept the neighbour's preference for a less dense development in this neighbourhood. 23 . With respect to the impact on adjoining properties, this relates to visual bulk of the two-storey dwellings, loss of privacy due to overlooking and perceived acoustic impacts. Regarding No. 6 Blaxland Road, there is a separation distance in the order of 30 m from the first floor level of the new houses to the outdoor area and living room. As there will be intervening, perimeter landscaping I do not consider that the degree of overlooking and loss of privacy to this living area or the tennis court is of such significance to warrant rejection of the proposal. Furthermore, I note that two-storey dwellings are permitted in this area, and again taking into consideration the separation distances, I do not consider there will be undue visual impacts for the residents of No. 6, on the basis that this is a SEPP 53 development. 24 . Likewise, Mr Barnes property is set back some 20 m from the new dwellings and when these are projected against the existing tree backdrop and allowance is made for the proposed landscaping, then I do not consider the degree of visual impact is unreasonable, for a SEPP 53 development. Whilst the additional houses may result in some extra noise generation, there was no substantive evidence to demonstrate that Mr Barnes perception of additional noise nuisance would be such as to warrant rejection of the application, providing the new residents adopt a "good neighbours attitude". 25 . Other matters raised by the objectors concern the adequacy of Blaxland Road to carry the additional traffic and provide a reasonable level of safety, particularly for emergency vehicles. Insofar as this aspect was put to the planners, there was no substantive evidence presented to show that the environmental capacity of this road would be exceeded. Instead it seems to me that there will be an incremental increase in traffic generation from the 3 additional lots, which is unlikely to cause any significant reduction in the current level of service experienced in the use of this road. 26 . For these reasons then, I rely on the conclusions of the planners that this application merits conditional consent. In doing so, I have considered the residents of objections, but give them diminished weight because they are not objectively based on the provisions of the prevailing planning control, which is SEPP 53. Furthermore, I have considered Ms Brown's report, which supports the neighbours' concerns. However, as she was not available for cross examination, I place more weight on the joint report of the planners, who participated in the proceedings to assist the Court. Court orders 27 . The orders of the Court are therefore: 1 The appeals are upheld. 2 Development consent is granted to DA 791/03 for the demolition of the existing house and erection of 2 dwelling houses in the form of a detached dual occupancy at No. 4 Blaxland Road, Killara, subject to conditions Annexure "A". 1 Development consent is granted to DA 792/03 for a 2 Lot Torrens title subdivision, creating Lot 260 and 261, subject to conditions in Annexure "B". 2 Development consent is granted to DA 793/03 for the erection of 2 additional dwelling houses, in the form of detached dual occupancy development on each of lots 260 and 261, created by the Stage 2 subdivision, subject to conditions in Annexure "C". 3 Development consent is granted to DA 794/03 for the Torrens Title subdivision of a detached dual occupancy development in Stage 3, subject to the conditions in Annexure "D". 4 The exhibits may be returned except for exhibits 12, 15, 16, C, D, E, F, H, K and L. ___________ R Hussey Commissioner of the Court rjs /ljr DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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