Land and Environment Court of New South Wales CITATION : Winter Group v Ku-ring-gai Council [2007] NSWLEC 565 APPLICANT Winter Group Architects Pty Limited PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 10290 of 2007 CORAM: Brown C KEY ISSUES: Development Application :- seniors' living development - consent orders - resident objections LEGISLATION CITED: Environmental Planning and Assessment Act 1979 DATES OF HEARING: 20/08/07 EX TEMPORE JUDGMENT DATE : 20 August 2007 APPLICANT Ms D Holm, solicitor SOLICITORS McKees Legal Solutions LEGAL REPRESENTATIVES: RESPONDENT Mr P Clay, barrister SOLICITORS Deacons JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 20 August 2007 10290 of 2007 Winter Group Architects Pty Limited v Ku-ring-gai Council JUDGMENT 1 COMMISSIONER: This matter comes before the Court for Consent Orders in relation to Development Application 624/06 for a seniors' living development at 106 and 108 Junction Road, Wahroonga. The site comprises Lot A in DP355392 and Lot 5 in DP23553. It has an area of 2763 square metres, a frontage of 47.803 metres and a depth of 57.912 metres. 2 The proposal provides for the demolition of two existing dwellings and the erection of nine units for seniors' living under the provisions of State Environmental Planning Policy (Seniors Living). The development will generally consist of two buildings over a basement car park. One building will contain two single-storey dwellings and a two-storey component containing two single level dwellings, one on top of each other. The second building will contain four single-storey dwellings and a fifth dwelling containing a main bedroom and en-suite on a second level. The basement car park will contain nine double garages with storage and three visitor car parking spaces. 3 In accordance with the Courts Practice Note Class 1 – Development Appeals any person objecting to the development may wish to have their concerns expressed to the Court in the Court's consideration of the Consent Orders. In this regard, Mr Richard Miles of 103 Carrington Road, Mrs Cynthia Barnett of 110 Junction Road and Mr and Mrs Bayliss of 110A Junction Road provided evidence on site. 4 Mr Miles expressed concern over the type, location and likely size of trees proposed along the common boundary. Following discussions on site, additional species were offered in place of those proposed in the landscaping plan. As I understand, Mr Miles generally accepted the replacement trees. I am satisfied that those replacement trees provide a reasonable balance between the concerns of Mr Miles and the requirements of the council that additional canopy trees should be located on the site to maintain the treed character of the area. 5 Ms Barnett raised issues relating to the size of the development and specifically the excessive number of units. Other issues related to the requirement of the council to retain of the conifers near the common boundary towards the street frontage and the need for a dilapidation report. I note that the conditions provided by the council contain the requirements for a dilapidation report. 6 In relation to Ms Barnett's concerns over the number of units, I note that the proposal is below the 0.5:1 floor space ratio set out in State Environmental Planning Policy (Seniors' Living). Density is therefore cannot be a reason to refuse the application. 7 On a related issue to the dilapidation report, I note that condition 87 requires a post-construction dilapidation report and, while not opposed by the applicant, was not seen to be necessary. In my view, it would be appropriate for condition 87 to be imposed as it provides the certainty required following construction of the proposed development. 8 The question of the conifers and the streetscape was an issue that was of some concern to Mrs Barnett, having had problems with tree roots finding their way into her sewerage pipes which are located near the common boundary. The council required the retention of the trees as they were seen as a positive benefit to the streetscape. Overall, I am satisfied that the trees should be retained, although I accept that they potentially could cause problems to the sewerage system on Ms Barnett's property, however there are other options available to Ms Barnett if blockage of the sewerage system continues to be an issue. 9 Mr and Mrs Bayliss expressed concerns about the loss of privacy from upstairs windows of the proposal, however on further examination of their concerns, they maintained that if the existing ivy growing on the tennis court fence adjoining a small part of the common boundary with the subject site was maintained, their privacy would not be impacted on. I note that the applicant and the council have agreed to the imposition of a condition that requires that existing ivy to be maintained. 10 There were no other major issues raised by either party or local residents (apart from conditions) that would warrant the refusal. 11 The council raised issues with three conditions. The council expressed the view that the requirements to the landscaping plan (condition 75) should be made as a deferred commencement condition so that a finished landscaping plan could be prepared that addressed the discussions on site in relation to the planting on the northern boundary rather than rely on a condition that seeks amendments to the existing landscaping plan. The applicant opposed this course of action. 12 In considering both submissions, I am satisfied that the preparation of a plan, that includes the amendments agreed on site, is the most appropriate course of action as it would clarify any potential issues in one certification and any confusion over the appropriate landscaping plan. Following further discussion, and as the amended landscaping plan could be produced in a relatively short time it was agreed that the making of final orders should be deferred until the preparation the amended landscaping plan. Directions were given for the serving of the amended landscape plan. 13 Conditions 80 and 81 require a bond be lodged against potential damage to any existing tree. Mr Clay, for the council, submits that the bonds can legally be placed on the consent, although this was inconsistent with the judgment in Falcomata v Ku-Ring-Gai Council (No. 2) [2005] 143 LGERA 346, where it was found there was no power to impose such a condition. In the absence of any other authority to place any doubt on this decision, the conditions should be deleted. 14 The Orders of the Court, by consent, are: 1. The appeal is upheld. 2. Development Application 624/06 for a seniors' living development at 106 and 108 Junction Road, Wahroonga is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibit A. ___________________ G T Brown 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.