Hart -v- Ku Ring Gai Council [2012] NSWLEC 1192

Land and Environment Court New South Wales

Medium Neutral Citation: Hart -v- Ku Ring Gai Council [2012] NSWLEC 1192 Hearing dates: 28 March 2012 Decision date: 28 March 2012 Jurisdiction: Class 1 Before: Tuor C Decision: Directions to the parties to seek a further hearing date and provide information. Catchwords: DEVELOPMENT APPLICATION - Dual occupancy and subdivision. Consent Orders. Adequacy of information and assessment. Matters raised by objector - heritage, privacy, height and bulk, compliance with planning controls Legislation Cited: Environmental Planning and Assessment Act 1979 Land & Environment Court Act 1979 State Environmental Planning Policy 53 State Environmental Planning Policy 53 - Transitional Provisions Cases Cited: Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Category: Principal judgment Parties: Robert Hart (Applicant)

Ku Ring Gai Council (Respondent) Representation: Counsel Mr G McKee solicitor (Applicant)

Ms R Fleming solicitor (Respondent) Solicitors McKees Legal Solutions (Applicant)

Norton Rose Australia (Respondent) File Number(s): 11259 of 2011 11260 of 2011

Judgment This determination was given extemporaneously and has been edited prior to publication 1COMMISSIONER: These are two appeals under s97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Ku-ring-gai Council of two development applications for 4 Treatts Road, Lindfield (site). 2Appeal No: 11260 of 2011 relates to a development application (DA0170/11) for alterations and additions to the existing dwelling and construction of a second dwelling at the rear of the site. 3Appeal No: 11259 of 2011 relates to a development application (DA0180/11) for the Torrens Title subdivision of the approved dual occupancy development. 4The matter was set down for a conciliation conference under s 34AA of the Land & Environment Court Act 1979 (LEC Act). At the request of the parties the Registrar vacated the s 34AA conference and the matter was set down for a hearing of consent orders. The provision of amended plans and a Heritage Impact Statement (HIS) had resolved the issues in dispute between the parties. 5The Statement of Facts and Contentions filed by the Council on 28 February 2012 included four contentions which can be summarised as: (1)inappropriate additions to the existing dwelling; (2)failure to provide a Heritage Impact Statement (HIS); (3)the subdivision application relies on the approval of the dual occupancy application; and (4)resident submissions. 6Contentions One, Two and Three were resolved between the parties through the provision of a HIS and amended plans which deleted the proposed second storey addition to the existing dwelling. 7The Court heard evidence from an adjoining owner, Mr Cougle, who raised a number of issues, which are outlined in Contention Four of the Statement of Facts and Contentions. His principal concern being the impact of the proposed dwelling on his property. 8Mr Cougle considered the proposal would adversely impact on the significance of his house and garden, which is a listed heritage item. Further, he considered the proposed upper level balcony and full height windows would result in unreasonable privacy impacts and that the height and bulk of the proposal was unacceptable. He said that the proposal did not comply with the relevant planning controls and had not been adequately assessed. 9The Court's Practice Direction for Class 1 Development Appeals provides: Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. 10The parties relied on the applicant's Statement of Environmental Effects (Exhibit B) and the Council's report (Exhibit 6) as being the relevant assessment under s 79C of the EPA Act. 11The Council report was an assessment prepared for a different application, however, the proposal in that application was the same as the amended proposal now before the Court. The assessment report recommended refusal of the application but this was primarily on the basis that the proposal was not permissible under State Environmental Planning Policy 53 - Transitional Provisions (SEPP 53 - Transitional Provisions). 12The assessment report undertakes only a cursory assessment of the statutory planning controls. In particular, there is no assessment of cl 32 of State Environmental Planning Policy 53 (SEPP 53), which provides: Consent must not be granted for development to which this part applies unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the following principles: 13The principles in cl 32 include Streetscape and Visual and Acoustic Privacy. 14The Statement of Environmental Effects assesses the proposal under cl 32 of SEPP 53, however, I am not satisfied that the proposed development demonstrates that adequate regard has been given to the principles in cl 32, sufficient to warrant an approval. 15In particular, the HIS provided deals only with the alterations and additions that were previously proposed to the existing house. It provides no assessment of the impact of the second dwelling on the significance of the adjoining heritage item at 6 Treatts Road, or from the street without the proposed addition to the existing house. 16The HIS also provides no assessment of the impact of placing a second dwelling on the site, given that the house is part of a Heritage Conservation Area under the draft Ku Ring Gai Local Environmental Plan 218 (Draft LEP). The Draft LEP has now been exhibited and is a relevant consideration under s79C. The Council' s Assessment Report does provide some assessment of these issues but this was undertaken without the benefit of the HIS. Further, the objections made on behalf of the owner of 6 Treatts Road raised these heritage impacts and they should be addressed, or at least it needs to be demonstrated that they have been considered. 17The Statement of Environmental Effects relies on separation distances and screening to demonstrate that adverse privacy impacts will not result from the second dwelling. The separation distances between the proposed house, the existing house and 6 Treatts Road is adequate. However, from the information provided, I am not satisfied that the potential privacy impacts from the balconies and full height windows of the bedrooms of the proposed dwelling has been adequately assessed. These areas overlook the open space of the existing dwelling and 6 Treatts Road and appear to rely largely on landscaping to achieve acceptable privacy. 18Further, the Assessment Report identifies areas of non compliance with the controls in Ku Ring Gai Dual Occupancy Code (the Code). However, the Report states: A detailed merit assessment has not been carried out in relation to the abovementioned non-compliances as it is considered that the application does not satisfy....SEPP 53 Transitional Provisions. 19While the Code is not a development control plan it is an adopted policy of Council and consistent with the decision of Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 it may be given some weight. Support for variations to the Code should be at least considered in any assessment of the application. In particular cl 4.9.5 of the Code provides that a second dwelling should not exceed a ceiling height of 3.5 metres. The proposed second dwelling has a ceiling height of 6.4 metres. This non-compliance is a key concern raised by the owner of 6 Treatts Road. This has not been addressed in the compliance table or the Assessment Report, other than to state that SEPP 53 does not have a height limit and therefore the SEPP would prevail over the height controls in the Code. 20I am not satisfied that this is the correct interpretation of the relationship between SEPP 53 and the Code, as SEPP would prevail if there is an inconsistency in controls, not in the absence of controls. 21From the information provided, I am unable to determine whether it is appropriate to grant the consent orders sought by the parties. In particular, Council has not demonstrated that the relevant statutory provisions have been complied with or that the objections of the adjoining resident have been properly taken into account.