Land and Environment Court of New South Wales CITATION : Ray Zhao v Ku-ring-gai Council [2004] NSWLEC 87 revised - 16/03/2004 APPLICANT Ray Zhao PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 11475 of 2003 CORAM: Tuor C. KEY ISSUES: Development Application :- Demolition of existing garage and construction of a tennis court - impact on residential amenity - tree retention LEGISLATION CITED: CASES CITED: DATES OF HEARING: 12/03/2004 EX TEMPORE 03/12/2004 JUDGMENT DATE : APPLICANT Mr P Rigg, solicitor SOLICITORS Deacons LEGAL REPRESENTATIVES: RESPONDENT Mr M Campbell, barrister JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 11475 of 2003 Tuor C 12 March 2004 Ray Zhao Applicant v Ku-ring-gai Council Respondent Judgment 1. This is an appeal against Ku-ruing-gai Council's refusal of a Development Application to demolish an existing garage and construct a tennis court at 203 Tryon Road, East Lindfield. 2. The background to the proposal, a description of the site and its context is in Ms Laidlaw's, town planner for the council, statement of evidence. 3. The site is zoned Residential 2(b) under Ku-ring-gai Planning Scheme Ordinance and tennis courts are permissible with consent. 4. DCP No. 38, both the new and the old versions, contains provisions that relate to tennis courts and refer to a council policy on tennis courts adopted in June 1986. 5. The main issues in the appeal relate to the impact that the tennis court will have on the amenity of the adjoining neighbour, Mr Dodds, at No. 205 Tryon Road, East Lindfield, and the impact on two trees: the hoop pine on the subject site and the silky oak on Mr Dodd's property. 6. The Court heard expert evidence from Ms Laidlaw and Mr A Morton, arborist, on behalf of council. No expert evidence was provided on behalf of the applicant. Although, Mr Campbell, the applicant's advocate, referred to the statement of environmental effects prepared by Mr Glendenning in support of an an earlier version of the application. 7. I had the benefit of visiting Mr Dodd's property. His main concern was that the proposed tennis court was too high and too close to his property, resulting in adverse privacy impacts, both aural and visual, and that the structure was visible above the height of the dividing fence. 8. These concerns were supported by Ms Laidlaw. In her opinion the tennis court did not comply with the DCP controls for tennis courts. In particular, it was setback only 600 mm from Mr Dodd's property instead of the required 3 m, if it were at grade, and 4.55 m based on its height above natural ground level. Ms Laidlaw also expressed concern that this resulted in an unacceptable amount of fill on the property. The proposal is above natural ground ranging from approximately 0.5 m at its western end to about 3.3 m at its eastern end. This elevates the slab of the tennis court above the level of adjoining properties in Tryon Road and results in overlooking of these properties. In Mr Dodd's case this is exentuated by the tennis court's proximity to the boundary. 9. Mr Campbell's submission, on behalf of the applicant, was that the tennis court was required to be elevated because of the need to drain towards the street. The court was close Mr Dodd's boundary because it had been moved away from the Hoop Pine to enable its retention. 10. Further, Mr Campbell submitted that the impact on Mr Dodd's property was acceptable as his property was orientated towards the north and the rooms affected by the court were secondary. He also submitted that the proposal met the assessment criteria of the DCP as these were primarily aimed at the retention of native trees. 11. I do not accept this submission. The assessment criteria at s 5.7.2 of the DCP states that: The tennis court should be located to ensure that there are sufficient areas between the court and the property boundary to: - minimise potentially adverse impacts such as noise, overlooking and visual intrusion; - provide sufficient area and appropriate landscaping. 12 . The design requirement also refers to s 5.2.25 relating to cut and fill which states that "the extent of excavation (cut) and fill must be minimised so as not to impact on existing trees required by council to be retained or significantly alter the natural landscape or watertable". The design requirements of this section permit 900 mm of cut and fill relative to natural ground level. The proposal clearly does not meet this requirement or the objectives in DCP which relate not only to tree retention but to natural landscape and watertable as well as to the impact on neighbouring amenity and visual intrusion. 13 . The amount of fill and the associated retaining walls is excessive and creates a very large structure covering a large amount of the back garden. This structure is above the level of other properties and will impact on Mr Dodd's enjoyment of his property. In the absence of any evidence to the contrary I find the proposal to be unacceptable. 14 . In relation to the trees, the evidence of Mr Morton is that they will survive if measures in the draft conditions are carefully implemented. Although the changed drainage, fill over the roots and any proposed barrier may reduce the Hoop Pine's vigour. 15 . The proposal also removes other trees which are not significant but which do provide a tree canopy for the area. No landscape plan was provided, but is a condition of approval. However, in the absence of such a plan it cannot be demonstrated how any of the impacts of the tennis court are mitigated, particularly screening along the boundary to No. 205 Tryon Road. Orders 16 . For these reasons the orders of the Court are: 1. The appeal is dismissed. 2. Development Application No. 397/02 for demolition of a garage and construction of a tennis court at 203 Tryon Road, East Lindfield, is determined by refusal. 3. The exhibits are returned. _________________ Annelise Tuor Commissioner of the Court rjs 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.