Taylor & Anor v Ku-Ring-Gai Council [2011] NSWLEC 1099

Land and Environment Court New South Wales

Medium Neutral Citation: Taylor & Anor v Ku-Ring-Gai Council [2011] NSWLEC 1099 Hearing dates: 29 October 2010, 30 October 2010, 23 February 2011 Decision date: 23 February 2011 Jurisdiction: Class 1 Before: Murrell C Decision: (1)The appeal in respect of the property known as 12 King Street, Turramurra is upheld; (2)The development application submitted to Ku-ring-gai Council and as amended for a two lot subdivision is granted approval subject to the conditions in annexure A; (3)The applicant is to pay the respondent's costs of and incidental to the original development application, as agreed in accordance with s 97B(2) of the Environmental Planning and Assessment Act ; and (4)The exhibits are returned to the parties with the exception of exhibit L, the amended plans, and the without prejudice conditions, exhibit 9. Catchwords: DEVELOPMENT APPLICATION: 2 lot subdivision of heritage item; impact on streetscape and adjoining properties; impact on heritage item. Legislation Cited: Environmental Planning and Assessment Act 1979 Ku-ring-gai Planning Scheme Ordinance Category: Principal judgment Parties: Taylor and anor (Applicant)

Ku-ring-gai Council (Respondent) Representation: Mr F Corsaro SC for part (Applicant)

Mr A Pickles barrister for part (Respondent) Concordia Pacific (Applicant)

Wilshire Webb Staunton Beattie (Respondent) File Number(s): 10220 of 2010

Judgment 1COMMISSIONER: The applicant in these proceedings is seeking to subdivide land at 12 King Street Turramurra, which contains a local heritage item. 2By way of background, this matter commenced as a s 34 conciliation conference. There was no agreement reached during the s 34(3) phase and the parties consented to me determining the matter under s 34(4). 3At the formal hearing the Court heard from experts, Mr Robert Staas, heritage consultant and Mr Dignam, council's heritage adviser. The Court also had the assistance of other council officers, namely Mr Stuart, in these proceedings and has met on site twice to understand the concerns and contentions of the council. 4During the formal hearing the application was amended from a 3 lot subdivision to two lots and the Court granted leave for amended plans. The applicant agreed to pay the council's costs in accordance with s 97(B) of the Environmental Planning and Assessment Act respect of the amended plans. The terms of the costs to be paid by the applicant to the respondent have been agreed. 5The subdivision that was originally submitted to the council was for a three-lot subdivision and the development application has now been amended to show two lots. Proposed lot 1 has an area of 986.5 sq m with access from Laurel Avenue. Lot 2 is proposed to have an area of 2,623 square metres and contains the two-storey heritage item and the tennis court with a curtilage for the garden setting of the heritage item. The heritage item on lot 2 will retain its access off King Street from the existing long driveway. 6When the Court first met on site a number of resident objectors gave evidence to the Court about their concerns the subdivision would create for the heritage item and also with respect to the streetscape of Laurel Avenue and King Street. 7The Court has the benefit, as I said, of two site inspections and, with the amended plan for a two lot subdivision and appropriate conditions to control the envelope and maximum RL for a dwelling house to be erected on lot 1, the proposed subdivision in my overall assessment is satisfactory for the following reasons. 8In terms of Laurel Avenue, the residents are concerned about this being a very busy street and the consistent large setback of dwellings within the street and the subject site is a well-vegetated site that contributes to the streetscape. 9The Court, in its assessment, has considered the streetscape and the requirements or restrictions to be placed on a dwelling house to be erected on lot 1. It is proposed that there be an area or a quadrant known as 'A' on the plan, which only provides for access from Laurel Avenue and no building in this area of the site. I also note that relevant trees are to be retained on proposed lot 1. 10In terms of the Laurel Avenue streetscape, I am satisfied that a dwelling on lot 1 will not adversely impact on the streetscape and while one may be aware of a dwelling house with access from the end of the cul de sac off Laurel Avenue it will be in keeping with maintaining the leafy streetscape in my assessment with the agreed conditions. 11Furthermore, in the portion of lot 1 that is designated as B, it is proposed that this be limited to a single storey such that there will not be an intrusion into the streetscape of a two-storey element. Furthermore, it will not be intrusive from other dwellings that have access from Laurel Avenue, including the site immediately to the south of portion B, which has a long driveway access from Laurel Avenue. 12The Court also has the benefit of understanding that the applicant is prepared to translocate certain palm trees within the site such that the landscape quality for the heritage dwelling will be retained and the proposed lot will have a minimal effect in terms of its prominent visibility from the two storey dwelling. 13I note that there are district views that will be retained from parts of the heritage lot, in particular, from that portion of the dwelling that is closest to King Street and from the driveway itself. There are no structures to be built in the area known as portion E, which has a swimming pool currently in this portion and it will allow for views to the more distant vegetated hills in the area. 14The Court also had the opportunity of seeing the district views from the upstairs of the property where, in many respects, it will be retained such that it still provides for a well-vegetated, leafy outlook. It is also proposed in the subdivision that the fence between lot 1 and lot 2, that is the southern fence of lot 1 where it adjoins lot 2, that the applicant must establish vegetation on the heritage side of that fence to retain the garden curtilage consistent with the setting of the heritage item. 15I also note that lot 1 has other vegetation of a rainforest dense nature in various parts however this is not original to the heritage house and has evolved over time. I do not consider that its removal or a large part of its removal will impact on the heritage significance of the dwelling house. 16The Court must assess the development application in terms of the heritage provisions of the Ku-ring-gai Planning Scheme Ordinance . The site is zoned 2(c) and is within the King Street /Laurel Avenue conservation area. In this regard, I must also consider the impact of the proposed development on the heritage item itself and in the vicinity of the heritage item and I am satisfied that the provisions of council's LEP are satisfied. Similarly, the council has a development control plan and any future dwelling erected on the subject site is proposed to be assessed in accordance with the relevant or current development control plan at that time. 17The applicant and the council have provided conditions to the Court which reflect my preliminary findings in terms of the relative levels of a dwelling house which is to be a maximum RL of 177.5 for the single storey component in area 'D'. The future dwelling house may be two storeys but there is a single storey requirement for both the portion that would be in part 'B' and the portion in part 'D', as shown on the subdivision plan. The proposal now before the Court provides a 12 m setback from Laurel Avenue and this area precludes any dwelling or structures and only allows access and minor works and there are generally to be 2 m setbacks provided along side boundaries. 18I make no determination with respect to the remaining fences, which would require the same consideration of other fences within Ku-ring-gai. The fences for lot 1 are not included in the 'other fences' apart from the one that adjoins the tennis court which is to be retained as the current scott wire for the tennis court and the southern fence where it adjoins the heritage item. As I said, the other fencing is not covered by this determination and as such would be the subject of further consideration at the appropriate time according to the relevant requirements. 19The heritage item will be retained on a lot of some 2,623 sq m, whereas it is currently on a lot of 3,610 sq m. In the Court's assessment, the proposed subdivision into two lots is satisfactory and I see no reason as to why the Court should not grant consent to this amended plan. 20The formal orders of this Court will be issued on receipt of the electronic version of the conditions to reflect my determination today and the following conditions. That is in respect of the applicant's version I accept the terms of condition 2(b) and for condition 2(e). I accept the council's version, with the amended wording in the last sentence as follows: "The fence may be lapped and capped timber or masonry". 21With respect to the other conditions, they are as generally agreed between the parties. It is appropriate that the s 94 contribution of some $18,317 be paid prior to the issue of the subdivision certificate and this allows any necessary drainage works to be done prior to the contribution being paid. Clearly before the erection of a dwelling house a subdivision certificate would be required and it is appropriate that the contribution be paid prior to the subdivision certificate and the erection of the dwelling on the created lot. 22The other condition that the applicant expressed concern about was paying the council's costs with respect to the s 88B instrument, that is its legal costs. I agree with the council that this is a standard condition and is one that is to be met by the applicant, as it has a clear nexus with the proposed development. 23Accordingly, with the assistance of the experts and based on my assessment above, I am satisfied that the development is worthy of approval and the formal orders of the Court will be: 1.The appeal in respect of the property known as 12 King Street, Turramurra is upheld; 2.The development application submitted to Ku-ring-gai Council, and as amended, for a two lot subdivision is granted approval subject to the conditions contained in Annexure 'A'; 3.The applicant is to pay the respondent's costs of and incidental to the original development application, as agreed, in accordance with s 97B(2) of the Environmental Planning and Assessment Act ; and 4.The exhibits are returned to the parties with the exception of exhibit L, the plans, and the 'without prejudice conditions', exhibit 9. J S Murrell Commissioner of the Court Annexure A