Longstaff v Ku-ring-gai Council [2009] NSWLEC 1090

Land and Environment Court of New South Wales

CITATION : Longstaff v Ku-ring-gai Council [2009] NSWLEC 1090

APPLICANT Julian and Kimberley Longstaff PARTIES : RESPONDENT Ku-ring-gai Council

FILE NUMBER(S) : 10029 of 2009

CORAM: Bly C

KEY ISSUES: MODIFICATION APPLICATION :- Garage and streetscape

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Ku-ring-gai Planning Scheme Ordinance Residential Design Manual - Development Control Plan No. 38

DATES OF HEARING: 20/03/2009

DATE OF JUDGMENT: 27 March 2009

APPLICANT Mr S. Kondilios, solicitor of Maddox Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Mr P. Marinkowitz, solicitor of Phillips Fox

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Bly C

27 March 2009

10029 of 2009 Julian and Kimberley Longstaff v Ku-ring-gai Council

JUDGMENT Introduction 1 This appeal relates to a development consent (DA 0132/08) granted by the Ku-ring-gai Council on 28 April 2008 for alterations and additions to the existing dwelling house at No. 18 Warrawee Avenue, Warrawee. 2 On 26 September 2008 the applicant in these proceedings submitted to the council an application under s.96 of the Environmental Planning and Assessment Act 1979 for the modification of the development consent by the deletion of condition 2 therein. That condition requires increased side and front setbacks for the proposed new double garage that is to the attached to the existing house on its south side. Planning controls 3 The site is zoned Residential 2(c2) under the Ku-ring-gai Planning Scheme Ordinance wherein dwelling houses are permissible with development consent. Because there are several nearby listed heritage items, including the neighbouring property at 16 Warrawee Avenue, clause 61E of the PSO is applicable and requires that consent shall not be granted unless and assessment has been made into the effect of the carrying out of the proposed development on the heritage significance of any such item. This requirement has effectively been met by the consideration of the heritage experts. 4 It is relevant to note that under the PSO the existing house on the site is not a heritage item nor is it included in a conservation area. However as discussed below it is included in a proposed urban conservation area and adjoins a National Trust Urban Conservation Area. Also it was not in dispute that the site has status as a potential future heritage item. According to Mr Dignam the house has been assessed as a fine and largely intact example of a substantial residents constructed in the Georgian Revival style.