Attard v Ku-ring-gai Council [2008] NSWLEC 87

Land and Environment Court of New South Wales

CITATION : Attard v Ku-ring-gai Council [2008] NSWLEC 87

APPLICANT Alfred Attard PARTIES : RESPONDENT Ku-ring-gai Council

FILE NUMBER(S) : 11033 of 2007

CORAM: Brown C

KEY ISSUES: Development Application :- construction of a dwelling to create a detached dual occupancy - impact on heritage item and setting and nearby heritage items

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

DATES OF HEARING: 13, 14/02/08

DATE OF JUDGMENT: 27 February 2008

APPLICANT Mr G Newport, barrister SOLICITORS Law and Planning LEGAL REPRESENTATIVES: RESPONDENT Mr C McEwen SC SOLICITORS Deacons

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Brown C

27 February 2008

11033 of 2008 Alfred Attard v Ku-ring-gai Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Ku-ring-gai Council (the council) of Development Application DA 1241/06 for the construction of a dwelling to create a detached dual occupancy development at 37 Burns Road Wahroonga (the site).

2 The issues raised by the council relate to the impact of the proposed dwelling on the heritage significance of the existing dwelling and its landscaped setting and nearby heritage items. The site 3 The site is rectangular with a 98.65 m northern boundary to Burns Road and a 72.29 m western boundary to Cleveland Street giving a total site area of 7018 sq m. It is known as "Craignairn" and contains a two-storey grand estate house towards the centre of the site and an expansive landscape curtilage to both street frontages. Access to the dwelling is obtained via a formal driveway from Burns Road. Background 4 The site has been the subject of a number of development proposals since 2001. The relevant chronology is: 28 March 2002 - an appeal against the refusal of the council of Development Application DA 1377/00 for a housing development for aged persons or persons with a disability was dismissed by the Land and Environment Court. 8 April 2003 - Development Application DA 1372/02 was approved by the council for the subdivision of 2 existing lots into 3 lots, being lots 151 152 and 153. Lots 152 and 153 were subject to later approvals for residential dwellings. Both dwellings have been constructed and are now occupied. Lot 151 is the site in this appeal. 2 February 2005 - Development Application DA 882/04 was approved by the council for alterations and additions to the existing dwelling, erection of a detached triple car garage including a first floor loft and fencing. 23 March 2005 - Development Application DA 04/05 was refused by the council for the subdivision of Lot 151 into two lots. 16 January 2006 - an appeal against the refusal of the council of Development Application DA 04/05 was dismissed by the Land and Environment Court 10 May 2007 - Development Application DA 1241/06 was refused by the council for a dual occupancy development, alterations and additions to the existing dwelling including an attached double garages, swimming pool, tennis court and associated landscaping works. 6 September 2007 - Development Application DA 471/07 was approved by the council for alterations and additions to the dwelling house including an attached double garage, the construction of a tennis court, teahouse, pergola, swimming pool and landscaping works. Condition 1 of the development consent stated that the consent of modified Development Application 882/04 "to the extent that the approved freestanding garage structure in that consent is deleted" 15 October 2007 - the Class 1 appeal was filed for the refusal of Development Application DA 1241/06. An amendment was made to limit the extent of the appeal to the dual occupancy component of the original application. The proposal 5 The proposal is to create a detached dual occupancy development through the conversion of the approved garage/loft (Development Application DA 882/04) into a two storey dwelling. A separate vehicular driveway from Cleveland Street and landscaping works are also proposed. Relevant planning controls 6 The proposed development is permissible through Sydney Regional Environmental Plan No 53- Metropolitan Residential Development although the council raised no issues in relation to the provisions in this plan. 7 The site is zoned Residential 2(c) under the Ku-ring-gai Planning Scheme Ordinance (KPSO). Schedule 9 provides aims and objectives for residential zones. Clause 61D(2) provides that: The council shall not grant consent to a development application under subclause(1) unless it has taken in consideration the extent to which the carrying out of the proposed development would affect the heritage significance of the item in any stylistic or horticultural features of its setting ."