Blake v Ku-ring-gai Council [2015] NSWLEC 1398

Land and Environment Court New South Wales

Medium Neutral Citation: Blake v Ku-ring-gai Council [2015] NSWLEC 1398 Hearing dates: 16,17 July 2015 Date of orders: 07 August 2015 Decision date: 07 August 2015 Jurisdiction: Class 1 Before: Brown ASC and Laing AC Decision: Directions for amended plans Catchwords: DEVELOPMENT APPLICATION: demolition of existing dwelling houses and the construction of 15 x 3 bedroom townhouses with basement parking – whether SEPP 65 applies - streetscape impacts - pedestrian entry - building separation - natural surveillance - solar access - pruning of the existing Himalayan Cedar – absence of detailed site analysis and design verification statement Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Ku-ring-gai Local Environmental Plan (Local Town Centres) 2012 State Environmental Planning Policy No. 65 Texts Cited: AS 4373-2007 Pruning of amenity trees. Category: Principal judgment Parties: Peter Blake (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: Mr A Pickles, barrister (Applicant) Mr R O'Gorman-Hughes (Respondent)

Solicitors: Apex Law (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 11046 of 2014 Publication restriction: No

Judgment 1. COMMISSIONERS: This is an appeal against the refusal by Ku-ring-gai Council of Development Application No. 370/14 for the demolition of existing dwelling houses and ancillary structures and the construction of 15 x 3 bedroom townhouses, basement car parking for up to 32 vehicles and landscaping at 5 and 5a Cherry Street Warrawee (the site). The council maintains that the application should be refused because: * the proposed development results in adverse urban design and streetscape impacts and poor amenity for residents, particularly pedestrian entry, building separation, natural surveillance and solar access, * the proposed development will have an adverse impact on the streetscape because of required pruning to the existing Cedrus deodar (Himalayan Cedar), * the dwellings are not accessible and do not comply with the Building Code of Australia (BCA), * the design not did not have regard to a detailed site analysis, and * no design verification statement has been submitted. 1. Following further details being provided, the council did not press the issues relating to pedestrian entry, natural surveillance, heritage and accessibility. 2. There was also disagreement over whether State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) applies to the proposed development. If SEPP 65 applies then cl 30 requires consideration to be given to the design quality principles in Part 2 (cl 30(2)(b)), the publication Residential Flat Design Code (RFDC) (cl 30(2)(c)) and a design verification statement. 3. A number of residents provided evidence on the site inspection and a number of residential properties were inspected and an assessment made of any potential impacts. Their concerns generally reflected those contentions raised by the council together with the additional concerns of increased traffic, additional street parking and loss of views.