Land and Environment Court of New South Wales CITATION : Mohebati-Arani v Ku-ring-gai Council [2009] NSWLEC 1093 APPLICANT M Mohebati-Arani PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 10858 of 2008 CORAM: Bly C KEY ISSUES: DEVELOPMENT APPLICATION :- construction of an additional dwelling, a new front fence, a car parking space and a deck and enclosure for the storage of garbage bins Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Ku-ring-gai Planning Scheme Ordinance State Environmental Planning Policy 65. DATES OF HEARING: 23/02/2009 and 05/03/2009 EX TEMPORE JUDGMENT DATE : 5 March 2009 APPLICANT Mr K. Willis, agent LEGAL REPRESENTATIVES: RESPONDENT Mrs L. Finn, solicitor of HWL Ebsworth Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 5 March 2009 10858 of 2008 M Mohebati-Arani v Ku-ring-gai Council This decision was given extemporaneously. It has been revised and edited prior to publication. JUDGMENT 1 This appeal relates to development application 0611/08 for the construction of an additional dwelling, a new front fence, a car parking space and a deck and enclosure for the storage of garbage bins at 696 Pacific Highway, Killara. 2 Existing on the site is a residential flat building containing nine dwellings. 3 The site is zoned Residential 2(d) under the Ku-ring-gai Planning Scheme Ordinance and in this zone residential flat buildings are permissible with development consent. 4 The application was advertised and no objections were received. 5 On 13 August 2008 the application was refused for reasons involving; failure to improve the environmental character of the area; not being sympathetic in design and scale, bulk or character with surrounding developments; unsatisfactory plans in terms of dimensions and details; the failure to address the issue of energy efficiency; and vehicular manoeuvrability. 6 In its statement of facts and contentions, the council now contends that the application should be refused. Those contentions are failure to provide sufficient information regarding the proposal and unsatisfactory plans; detrimental impacts on the amenity and character of the area; unsatisfactory car parking arrangements; and unauthorised building works. 7 The hearing began on site when I had the opportunity of inspecting the existing works and the location of the proposed extension. Following that inspection and on return to Court I heard from both Mr Willis on behalf of the applicant and Mr S Garland the council's town planner. Mr Garland explained his concerns in relation to the amenity of the proposed dwelling mainly involving solar access. 8 Notwithstanding that amenity was not specifically identified in the statement of facts and contentions, the amenity of the proposed dwelling is in my opinion of significance and requires proper consideration. 9 Various shadow diagrams have been prepared. In this context I prefer the evidence of Mr Garland over that of Mr Willis that solar access to the dwelling is unsatisfactory. This is because the dwelling does not achieve the three hours of solar penetration as recommended by State Environmental Planning Policy 65. Notwithstanding that the proposed dwellings small courtyard would receive a reasonable amount of sunlight at the winter solstice, the dwelling itself would receive nothing like the three hour requirement. 10 When the solar access deficiency is considered in the context of the other concerns raised by the council, that being the less than minimum ceiling height in the bedroom and the position of the bedroom window adjacent to the public walkway, these matters together cause me to conclude that the amenity of the proposed dwelling would be so unsatisfactory that it should not be approved. 11 Because I have decided that the dwelling should not be approved, it is therefore unnecessary for the proposed car parking space (that was to be associated with the dwelling) to be provided, and taking also in to account the location of this car space on a service easement, it also should not be approved. 12 The other aspects of the development application include the front fence and the new garbage storage area. The applicant has advised that it wishes to proceed with those works irrespective of the outcome of the appeal in relation to the dwelling, and the council supports those works. 13 In the circumstances I have decided to uphold the appeal in relation to the front fence and the garbage storage area and grant consent for those works only. Orders 14 The orders of the Court are therefore that: 1. The appeal is upheld in part. 2. Development consent is granted for alterations to the front fence and the provision of a deck and enclosure for the storage of garbage as shown on the plans (Exhibit J) subject to the conditions in Annexure A hereto including a deferred commencement condition requiring the preparation of detailed plans for the bin storage area. 3. Exhibits J and C are retained. ___________________ T A Bly Commissioner of the Court 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. 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.