McEwen v Ku-ring-gai Council [2012] NSWLEC 1033

Land and Environment Court New South Wales

Medium Neutral Citation: McEwen v Ku-ring-gai Council [2012] NSWLEC 1033 Hearing dates: 31 January 2012 Decision date: 01 February 2012 Jurisdiction: Class 1 Before: Morris C Decision: Appeal dismissed Catchwords: DEVELOPMENT APPLICATION: streetscape Legislation Cited: Land and Environment Court Act 1979; Ku-ring-gai Planning Scheme Ordinance Texts Cited: The Ku-ring-gai Residential Design Manual - Development Control Plan No. 38 Category: Principal judgment Parties: Robert McEwen (Applicant)

Ku-ring-gai Council (Respondent) Representation: Mr S Kondilios Maddocks Lawyers (Applicant)

Mr T Flaherty Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 10994 of 2011

Judgment 1Mr McEwen lodged Development Application No. 383/2011 which proposed the construction of a carport at the front of an existing dwelling house at No. 16 Warrangi Street, Turramurra. Ku-ring-gai Council refused that application and Mr McEwen is appealing that determination. 2The matter was heard on site under the provisions of s34AA(2)(b)(i) of the Land and Environment Court Act 1979 (the LEC Act) as the parties failed to reach an agreement during the conciliation conference. The issues between the parties are whether the proposed carport is appropriate in terms of streetscape, location, landscape character/setting and whether it is consistent with the council's planning controls.

Background and the proposal 3In June 2004, Mr and Mrs McEwen obtained development consent from the council to carry out alterations and additions to their dwelling house. That consent authorised the construction of additions to the rear of the single storey dwelling including an expansive timber deck around the perimeter of those additions and demolition of the existing living room and construction of a new two-car garage in the north-eastern corner of the dwelling accessed from an existing driveway that serviced a single car garage in the backyard of the site. First floor additions to provide four new bedrooms, bathroom, family room and further terrace and decks were also approved as part of that consent. (DA 7/04). 4In November 2004, DA 7/04 was modified by the deletion of the double garage and the retention of the living room at the front of the dwelling and minor changes to the configuration of the stairs that access the rear deck. The effect of those changes is relevant to the application as, by deleting the double garage and not altering the configuration of the rear deck, access to the existing garage by any size car was no longer possible due to the proximity of the deck to the entrance of the garage. The consequence of this change is that no covered area was provided on the site for car parking, with parking accommodated along the driveway in front of the dwelling house. 5The works authorised under the consent as modified have been completed and no formal parking area exists on the site. Whilst it is possible to drive along the northern side of the dwelling, the use of that area for parking is constrained by its narrow width. 6The application before the Court proposes the construction of a two-car carport adjacent and to the east of a verandah that opens off the living area that was originally to be converted to the garage but now retained as one of two living areas within the ground floor of the dwelling house. The carport would be constructed 845mm from the side, northern property boundary and 5.7m from the front boundary to Warrangi Street. It has dimensions of 5.8m x 5.8m and would comprise four 350mm x 350mm corner piers supporting a tiled, pitched roof designed to match the existing dwelling. The carport would have an internal height of 2.1m and ridge height 4.18m above slab level, which corresponds to the existing first floor level of the dwelling. A concrete driveway is proposed to access the carport and the existing driveway would be re-aligned to facilitate vehicle access. 7The plans lodged indicate new planting to the garden bed to the north of the proposed carport and the removal of a garden bed located to the front of the existing verandah. No trees are to be removed from the site. 8The development application was lodged with the council on 26 July 2011 and was refused on 2 September 2011 on grounds of design, amenity and environmental character.