Coles & Merc v Ku-ring-gai Council [2007] NSWLEC 249

Land and Environment Court of New South Wales

CITATION : Coles & Merc v Ku-ring-gai Council [2007] NSWLEC 249

Applicant: Coles &Merc Pty Ltd PARTIES : Respondent: Ku-ring-gai Council

FILE NUMBER(S) : 10732 of 2006

CORAM: Roseth SC

KEY ISSUES: Development Application :- heritage impact on State significant item

DATES OF HEARING: 16/04/2007, 17/04/2007, 18/04/2007, 30/04/2007 and 04/05/2007

DATE OF JUDGMENT: 4 May 2007

Applicant:: LEGAL REPRESENTATIVES: Mr D Baird, solicitor of Maddocks Respondent: Mr A Galasso, barrister instructed by Mr P Marincowitz of Phillips Fox

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Roseth SC

4 May 2007

10732 of 2006 Coles & Merc Pty Ltd v Ku-ring-gai Council

JUDGMENT 1 Senior Commissioner: This is an appeal against the deemed refusal by Ku-ring-gai Council (the council) of a development application to demolish the existing buildings on an amalgamated site consisting of lot B DP 166200 (known as 3 Bundarra Avenue South, Wahroonga), lot A DP 166200 (known as 5 Bundarra Avenue South), lot 1 DP 11176 (known as 7 Bundarra Avenue South), lot 2 DP 11176 (known as 9 Bundarra Avenue South), lot 20 DP 849795 (known as 11 Bundarra Avenue South), lot 21 DP 849795 (known as 13 Bundarra Avenue South) and lot C DP 411946 (known as 10 Woonona Avenue South) and to erect a medium density housing development comprising 66 dwellings in two five-storey and one three-storey buildings.

The site 2 The site is an amalgamation of seven allotments in Wahroonga: lot B DP 166200 (known as 3 Bundarra Avenue South), lot A DP 166200 (known as 5 Bundarra Avenue South), lot 1 DP 11176 (known as 7 Bundarra Avenue South), lot 2 DP 11176 (known as 9 Bundarra Avenue South), lot 20 DP 849795 (known as 11 Bundarra Avenue South), lot 21 DP 849795 (known as 13 Bundarra Avenue South) and lot C DP 411946 (known as 10 Woonona Avenue South) 3 Apart from the access handle, which is zoned 2(c) (low-density housing), the site is zoned 2(d3), a zone that allows flats up to five storeys. The site's area is 5,931m2, including the access handle, which is 441m2, making the site proper 5,490m2. There are now seven houses on the site. Two of the allotments are battle-axe lots, while the others have frontages to Bundarra Avenue. Almost adjoining the site is 14 Woonona Avenue, a property called "The Briars" that is listed on the State Heritage Register. 4 To the west of the site is the Sydney-Newcastle Freeway and to the south Pacific Highway. Immediately adjoining the site are detached houses with lots sizes of around 900m2. Further to the north is Abbotsleigh Junior School. To the west on Bundarra Avenue is a group of townhouses. Wahroonga railway station is about 400m "as the crow flies", but about twice that distance by walking.