Land and Environment Court New South Wales Medium Neutral Citation: Hart -v- Ku Ring Gai Council (No. 2) [2012] NSWLEC 1193 Hearing dates: 4 April 2012 Decision date: 05 April 2012 Jurisdiction: Class 1 Before: Tuor C Decision: In relation to Appeal No. 11260 of 2001, the Court orders by consent: 1. The appeal is upheld. 2. Development application number DA 0170/11 for demolition of a studio/garage and construction of a new dwelling as a dual occupancy development is approved subject to the conditions in Annexure A. 3. The exhibits, except Exhibits 2, 3 and F, may be returned. The Court notes each party is to bear their own costs of the proceedings (excluding the orders made by the Court pursuant to s 97B of the Environmental Planning and Assessment Act 1979 on 2 February 2012 and 23 March 2012). In relation to Appeal No.11259 of 2011, the Court orders by consent: 1. The appeal is upheld. 2. Development Application No. DA 0180/11 for torrens title subdivision of an approved dual occupancy development (DA 0170/11) is approved subject to conditions in Annexure A. 3. The exhibits, except Exhibits 1 and O, may be returned. The Court notes that each party is to bear their own costs of the proceedings. Catchwords: DEVELOPMENT APPLICATION - Dual occupancy and subdivision. Consent Orders. 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 Interim Development Order 78 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: On 28 March 2012, I handed down a preliminary judgment on the consent orders sought by the parties in relation to these two appeals. From the information provided at that time, I was unable to determine whether it was appropriate to grant the consent orders. In particular, the parties had not demonstrated to my satisfaction that the relevant statutory provisions had been complied with or that the objections of the adjoining resident had been properly taken into account. 2The parties have now submitted further information including an Amended Statement of Environmental Effects (SEE) and an Amended Heritage Impact Statement (HIS) and joint reports on Planning and Heritage. 3The Court has also had the benefit of viewing the site, the streetscape and the adjoining property and hearing heritage evidence from Mr G Brooks, for the applicant and Mr P Dignam, for the council and planning evidence from Mr E Sarich, for the applicant and Mr G Bolton, for the council. Heritage 4The joint report of the heritage experts and the HIS concluded that the proposed dual occupancy development would have an acceptable impact on the heritage conservation area proposed under draft Ku-ring-gai Local Environmental Plan 218 (Draft LEP) and the heritage items at 6 and 8 Treatts Road, identified in Interim Development Order 78 (IDO 78). Mr Dignam held this view, based on the amended plans which delete the proposed carport and the second floor addition to the existing house, thereby retaining its current form and appearance from the street. 5The experts agree that the proposed dwelling house (House 2) is set back about 70 metres from the Treatts Road frontage and will have virtually no visible presence within the Treatts Road streetscape. 6Mr Brooks and Mr Dignam agree; Given its location, the screening afforded by the existing house and the intervening landscaping on both properties, there is no possibility of any significant visual connection between the front elevation and the primary architectural form from the adjoining house at 6 Treatts Road and the new house at 4 Treatts Road. 7Further, the heritage experts agree that the location and landscape setting of House 2, adjoining the tennis court of 6 Treatts Road, will not result in an unacceptable impact on its significance. Planning 8The planning experts addressed the relevant statutory provisions and the concerns of the objector, Mr Cougle. In particular, his concern about the height of House 2 and the potential overlooking of his property. 9Mr Bolton and Mr Sarich agree that the privacy impacts are acceptable because: * the setback of House 2 (approximately seven metres from the northern boundary): * the use of the upper floor for bedrooms; * the width of the balcony and its translucent glazing; * the existing hedge planting on 6 Treatts Road; and * the proposed hedge planting along the northern boundary, which is conditioned to be maintained to a height of four metres. 10The experts addressed the height of House 2 and its compliance with the requirements of State Environmental Planning Policy 53 (SEPP 53) and the Ku Ring Gai Dual Occupancy Code (Code). 11SEPP 53 does not include a numerical height control but cl 32 requires satisfaction that the proposal demonstrates that adequate regard has been given to principles of streetscape, visual and acoustic privacy, solar access and visual bulk. These principles are similar to the assessment criteria for height in the Code. 12Mr Sarich and Mr Bolton agree that even though House 2 does not comply with the ceiling height control of 3.6 metres in cl 4.9.5 of the Code, it complies with the overall control of seven metres and meets the objectives of the control and the principles in cl 32 of SEPP 53. 13Mr Bolton and Mr Sarich also agree that, while there are other numerical noncompliances with the Code, such as cut and fill, built upon area and total landscaping, the proposal meets the objectives of these controls. Mr Sarich noted that the proposal more than meets the two development standards in SEPP 53 which relate to allotment size and floor space ratio. 14The planning experts agree that the proposed subdivision is permissible with consent under cl 10 of IDO 78 and that there are no relevant developmental controls for subdivision. Clause 5 of IDO 78 provides minimum allotment sizes for the erection of a dwelling, however these are not relevant to the subdivision application under IDO 78 or the dual occupancy application under SEPP 53. 15On the basis of the additional information and the evidence of the experts, I am satisfied that the issues in dispute between the parties and the concerns of the objectors have been adequately addressed. 16The only issue that requires further comment is whether a condition which restricts the overall height of the development should be included. The planners did not consider the condition was necessary as, in their opinion, it may restrict future applications for the existing house which should be considered on their merits. 17Dr Smith, for the council, supported the Court imposing the condition, whereas Mr McKee, for the applicant, did not support the condition but would accept it if imposed by the Court. 18I find that it is appropriate to include a condition in relation to the height of House 1. The dispute between the parties in relation to Contention 1 was resolved through the submission of amended plans which deleted the second storey and limited the height. 19Such a condition would merely reflect the application for which consent is being sought. It does not preclude a further application being made and considered on its merits against the relevant planning controls at any future time. 20For these reasons I am satisfied that the consent orders sought by the parties may be granted. Orders 21In relation to Appeal No. 11260 of 2001, the Court orders by consent: 1. The appeal is upheld. 2. Development application number DA 0170/11 for demolition of a studio/garage and construction of a new dwelling as a dual occupancy development is approved subject to the conditions in Annexure A. 3. The exhibits, except Exhibits 2, 3 and F, may be returned. 22The Court notes each party is to bear their own costs of the proceedings (excluding the orders made by the Court pursuant to s 97B of the Environmental Planning and Assessment Act 1979 on 2 February 2012 and 23 March 2012). 23In relation to Appeal No.11259 of 2011, the Court orders by consent: 1. The appeal is upheld. 2. Development Application No. DA 0180/11 for torrens title subdivision of an approved dual occupancy development (DA 0170/11) is approved subject to conditions in Annexure A. 3. The exhibits, except Exhibits 1 and O, may be returned. 24The Court notes that each party is to bear their own costs of the proceedings. ________________________ Annelise Tuor Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 July 2012