Mortimer D K and Anor v Ku-ring-gai Council [2007] NSWLEC 254

Land and Environment Court of New South Wales

CITATION : Mortimer D K and Anor v Ku-ring-gai Council [2007] NSWLEC 254 This decision has been amended. Please see the end of the judgment for a list of the amendments.

APPLICANT: PARTIES : Mr David Kenneth Mortimer & Mrs Leanne Shirley Mortimer RESPONDENT: Ku-ring-gai Council

FILE NUMBER(S) : 10014 of 2007

CORAM: Watts C at 1 - Taylor AC at 1

KEY ISSUES: Subdivision :- Impact of the proposal on the Blue Gum High Forest or Sydney Turpentine – Ironbark Ecological Communities

LEGISLATION CITED: Ku-ring-gai Planning Scheme Ordinance, (KPSO) Environmental Planning and Assessment Act 1979, ss79C and 97

DATES OF HEARING: 07/05/2007

DATE OF JUDGMENT: 9 May 2007

APPLICANT: Mr S Kondilios, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Maddocks RESPONDENT: Mr A Hudson, solicitor SOLICITORS: Wilshire Webb Staunton Beattie

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

9 May 2007

10014 of 2007 - Mr David Kenneth Mortimer & Mrs Leanne Shirley Mortimer v Ku-ring-gai Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Ku-ring-gai Council (the council) of a development application to demolish existing improvements and to subdivide into four allotments land at Lot 39, Section 4, DP 3312, being No 82 Ada Avenue, Wahroonga. 2 We visited the land in company with the parties on the morning of the hearing. 3 During the hearing, the application was amended to subdivide into two allotments and we have concluded that this amended application when considered under s 79C of the Environmental Planning and Assessment Act 1979, is satisfactory and may granted consent subject to conditions. The land 4 The land is situated on the eastern side of Ada Avenue, Wahroonga. It is regular in shape except for the eastern boundary that follows the line of a creek bed and has a street frontage of 18m, a depth of about 51.62m and an area of some 929m2. 5 The land falls about 16 metres to rear from the front to the rear down to a watercourse that transverses the rear eastern part of the land. 6 The extent of the Blue Gum High Forest and the Sydney Turpentine Ironbark Forest - Endangered Ecological Community under the Threatened Species Conservation Act 1995 (TSC Act) and the Federal Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) has been agreed between the parties. The western extent of that forest is indicated on the amended plan of subdivision by a blue line. No trees within the forest will be impacted upon by the proposed amended subdivision. 7 Existing improvements include a two-storey dwelling with a single garage. 8 The subject land is described in the Ku-ring-gai Visual Character Study as being located within an area characterised by single dwellings on single lots with many being erected in the period from 1945 to 1968. Ada Avenue comprises an intact streetscape of uniform architectural style and with buildings erected about the same time. The following are distinguishing features within the streetscape: · consistent generous front setbacks; · large proportion of open space mostly to the rear of the residence and mature established gardens; · low brick, timber or herbaceous-front boundary fences; and · driveway and single car accommodation located at the side of residences or integrated into the dwellings. Relevant planning controls Ku-ring-gai Planning Scheme Ordinance, (KPSO) 9 Under the provisions of the KPSO the land is zoned Residential 2(c) and the proposed subdivision is permissible with consent. 10 Other statutory controls include: · Threatened Species Conservation Act 1995 (TSC Act). · Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). · State Environmental Planning Policy 1- Development Standards, (SEPP1). · Development Control Plan 38 (Residential Design Manual) Development Control Plan No 43 (Car Parking), (DCP38) · Development Control Plan 47 (Water Management) Development Control Plan No 56 (Notification), (DCP47) · Riparian Policy, (Policy). · Subdivision Code, (Code). · Bush Fire Prone Land Map, (BFPL). The proposal and its history 11 Development application No 1126/06 was lodged with the respondent council on 29 September 2006 to demolish the existing improvements and to subdivide the land. 12 It was proposed to create four (4) Torrens title allotments: · Lot 391: 929m2 with 18m frontage. · Lot 392: 1,520m2 (1,301m2 excluding right of carriageway). · Lot 393: 1,643m2 (1,424m2 excluding right of carriageway). · Lot 394: 929 m2 with 18m frontage. 13 It is now proposed to create two (2) Torrens title allotments: · Lot 391: 4,154.8m2 is 'L' shaped with a 22.23m frontage. · Lot 392: 929m2 with 18m frontage.