Land and Environment Court of New South Wales CITATION : Taylor and Anor v Ku-ring-gai Council [2007] NSWLEC 423 APPLICANT Lee MareeTaylor and Philip Thomas Taylor PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 10376 of 2007 CORAM: Bly C KEY ISSUES: Development Application :- Torrens Title subdivision into three lots, heritage LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Ku-ring-gai Planning Schemes Ordinance DATES OF HEARING: 29/06/2007 EX TEMPORE JUDGMENT DATE : 29 June 2007 APPLICANT Mr P. Taylor, litigant in person LEGAL REPRESENTATIVES: RESPONDENT Mr A. Hudson, solicitor and Ms K. Allen, solicitor of Wilshire Webb Staunton Beattie Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 29 June 2007 10376 of 2007 Lee MareeTaylor and Philip Thomas Taylor 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 No. 275/05 which is for the Torrens Title subdivision of Lot 1 DP 518006 being No. 12 King Street, Turramurra into 3 Lots. These proposed lots have areas of 931 sq m, 1748 sq m, and 930 sq m being respectively referred to as Lots 1, 2 and 3. Lot 2, the larger of the 3 lots, is presently occupied by a two-storey dwelling house that is, under the Ku-ring-gai Planning Schemes Ordinance ("the PSO"), a listed heritage item of local significance. The site is situated at the end of King Street which provides access to proposed Lots 2 and 3, whereas Lot 1 will obtain access off Laurel Avenue. 2 Whilst the locality is generally characterised by one and two-storey dwelling houses, there are nevertheless a number of three-storey residential flat buildings in King Street and a church. 3 The site is included in the 2(c) Residential zone under the PSO and in this zone dwelling houses are permissible with development consent. Subdivision is permissible with development consent pursuant to cl 58A of the LEP and cl 58A(3)(c)(i) sets minimum lot sizes which are met by the proposal. Clause 61D(1) provides that consent is required for the subdivision of land where a heritage item is involved and cl 61D(2) requires that consent should not be granted unless consideration is given as to the extent to which the carrying out of the subdivision would affect the heritage significance of the item. 4 The application was advertised and four submissions were received from neighbouring or nearby property owners. Matters of concern raised in those objections include adverse impacts on the significance of the heritage item, increased traffic congestion in King Street with resultant concerns for pedestrian safety, and the covenant that applies to and constrains development of the subject land. 5 When the hearing began onsite, I had the opportunity of hearing from Mr. S. Parker of 10 King Street whose property immediately adjoins the subject land to the south. Mr. Parker explained that he and his wife were concerned about a number of matters including the likely noise that would be generated from an additional house on the subject site particularly on proposed Lot 3. Also the additional traffic would reduce the safety associated with access and egress to his property both by vehicle and as a pedestrian. In this regard he said that there would be about 6 driveways in close proximity to one another at the very end of King Street. Secondly, he was concerned that the outlook from his property would be adversely affected by the construction of a house on Lot 3. Also the additional house and driveway would have adverse affects on the heritage significance of the existing heritage item. 6 I had the opportunity of considering expert evidence both oral and written as well as council reports on behalf of the respondent council Mr. G. Stuart, a Town Planner; and Mr. P. Dignan, a heritage expert. On behalf of the applicant, I heard from Mr. E. Sarich, a cosultant town planner, and Mr. G. Pach, a heritage consultant. The applicant was self-represented. 7 The application was considered by the council and refused on 9 May 2006 for reasons involving the heritage significance of the item and the likely impact that the subdivision and subsequent development would have on it. In its Statement of Facts and Contentions, the council now says that the appeal should not be upheld for the following reasons: 1. The heritage significance of the item as a former estate would be significantly eroded by the 3 Lot subdivision and subsequent development on the 2 new lots with residential development. The particulars of the issue are: a. The curtilage and setting of the heritage item is substantially reduced by the loss of significant elements (part of the open grass area in front of the house, the wooded informal area near Laurel Avenue, and the tennis court) that contribute to the heritage significance. b. Adequate visual catchments and view corridors have not been established, views to the heritage item from the public realm (particularly King Street) and from within the site are not protected. 8 When the hearing first commenced, I invited the parties to consider whether agreement could be reached pursuant to s.34(3)(a) of the Land and Environment Court Act 1979. Some time was spent pursuing this course but in the end was unsuccessful and the Court was invited pursuant to s. 34(3)(b)(ii) to determine the matter without further hearing. 9 I have now had the opportunity of considering the various materials provided as part of the proceedings and inspection of the site and its environs. Plainly the fundamental issue associated with this application is that which is described in the council's contentions that in essence are that the subdivision and likely subsequent development of the 2 additional lots would have impacts on the curtilage and setting of the heritage item and the view catchments and view corridors to and from it. It emerged during the proceedings that the council, based upon its own heritage advice, was not fundamentally opposed to proposed Lot 1 in essentially the configuration as proposed. This is because that lot is capable of being developed with a building that would facilitate at the eastern end of the site, a view corridor extending to the north from the heritage item. Whilst that view corridor would be over what would become an adjoining property and over a boundary fence of some kind, I can accept that such an arrangement would be acceptable. Whilst it reduces the extent of the present northerly curtilage of the heritage item, the fact of it having an outlook into the distance does contribute to the curtilage. 10 As for proposed Lot 3 that commences at the western end of King Street, I note that there is a covenant over this land that would prevent the construction of buildings in that part of the lot that comprises the westward alignment of King Street. This means that there would no building on that part of Lot 3 that would obstruct the view from King Street of the heritage item. 11 Despite this, the configuration as now proposed with respect to the view corridors from King Street and the curtilage of the heritage item is in my view fatally flawed. The configuration as proposed will result in there being at the end of King Street 3 separate driveways, the third driveway involving an existing dwelling house to the north of the subject land. The two driveways each on Lots 2 and 3 will give a clear impression of a division of land, this will be reinforced by a likely fence between the two lots of some kind and a different ownership of both sides of this fence. This will most likely result in a different landscape and land use arrangement that would give a clear impression to a viewer in King Street of different ownerships and therefore a clear impression that the curtilage of the heritage item is significantly modified. 12 In my view, it is imperative that notwithstanding the progressive reduction in significance of the heritage item and its curtilage over the years that the progressive degeneration of its important characteristics be halted and as a consequence, the subdivision arrangement as presently proposed must be refused. I am satisfied that the configuration of Lot 3, particularly at its southern and south-western extremities, and the resulting likely development of that part of the lot notwithstanding that it would not be occupied by a dwelling house, would so affect the curtilage of the heritage item and the view corridors from King Street to it as to make it unacceptable. 13 In relation to the concerns expressed, particularly those from the neighbours in relation to traffic and the like, I have considered those matters in light of the evidence provided by the council in the manner of the reports provided by its own experts and taking those matters into account I would not have rejected the application on that basis. 14 The orders of the Court will therefore be that the appeal is dismissed and the development application refused. _________________________ T A Bly Commissioner of the Court A.K/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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