Hew v Ku-ring-gai Council [2012] NSWLEC 1209

Land and Environment Court New South Wales

Medium Neutral Citation: Hew v Ku-ring-gai Council [2012] NSWLEC 1209 Hearing dates: 26-27 July 2012 Decision date: 03 August 2012 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is upheld. 2. Development Application No. 0525/11 for a townhouse development, including alterations and additions to the existing dwelling, at 5 Yarabah Avenue, Gordon, is approved, subject to the conditions in Annexure A. 3. The exhibits are returned, with the exception of exhibit 2. Catchwords: DEVELOPMENT APPLICATION: Consent orders; townhouse development; draft LEP; resident objectors. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Segal & Anor v Waverley Council [2005] NSWCA 310 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA Category: Principal judgment Parties: Mr Douglas Hew (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel Mr M. Staunton Barrister (Applicant) Dr S. Berveling Barrister (Respondent) Solicitors Pikes & Verekers Lawyers (Applicant) Wiltshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 12/10007

Judgment 1COMMISSIONER: This appeal comes before the Court for consent orders in relation to Development Application No. 0525/11 (the application) for alterations and additions to the existing dwelling and the construction of three townhouses to the rear of the existing dwelling and a basement garage, at 5 Yarabah Avenue, Gordon (the site). 2The appeal was subject to conciliation on 21 March 2012, in accordance with the provisions of s34 of the Land and Environment Court Act 1979 (LEC Act). As no agreement was reached during the conciliation phase, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act, on 19 April 2012. 3Prior to the hearing, the parties agreed to enter into consent orders, based on amendments made to the original application. The principle changes are: * The existing house is retained as a single dwelling and the block of three townhouses at the front of the site has been deleted; * The attic room to unit 2 and roof dormer on the western elevation has been deleted; * The attic room to unit 3 has been deleted; * The profile of the roof of the rear block of three townhouses has been amended to delete the ridge of the hipped roof and replace it with a pitched roof draining to a central valley, in order to look like two intersecting pyramid roofs. 4In considering the consent orders, the Court's Practice Note - Class 1 Development Appeals (paragraphs 35-6) provides: Application for final orders by consent of parties 35. When there is agreement prior to the commencement of a hearing of development appeals involving a deemed refusal of the application by the consent authority, the Court will usually expect the consent authority to give effect to the agreement by itself granting consent or approval. 36. 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. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following: (i) the content of the proposed orders (including the proposed conditions of consent); (ii)the date of the hearing by the Court to consider making the proposed consent orders; and (iii)the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary. 5In accordance with the Practice Note, four local residents provided evidence at the consent order hearing. The residents' concerns can be summarised as: * The height, bulk and scale of the proposal remains unacceptable following the amendments made to the scheme; * The proposal seeks to take advantage of the 'window of opportunity' offered by the current planning framework, without reference to the objectives of the R2 zone and Yarabah Avenue heritage conservation area proposed by the draft Ku-ring-gai Local Centres Local Environment Plan 2012; * The site is less than the minimum site area of 1200m2 required by clause 25E of the Ku-ring-gai Planning Scheme Ordinance (KPSO) for multi-unit housing; * The neighbour to the west of the site said that the slope of the land exacerbates the impact of the proposal on her amenity as her property is lower than the site and the setback of the townhouse block from the side boundary shared with her property is insufficient; * The neighbour to the rear of the site cited the impact of the proposal on the heritage significance of his property, which is identified as a local heritage item. He said that the proposal would result in 3 rear courtyards adjacent to his outdoor area and asked that the three mature Camellias on the site, adjacent to the boundary, be retained.