Allen & Hawkes v Ku-ring-gai Council

Applicant: Mr G McKee, solicitor of McKees Legal Solutions LEGAL REPRESENTATIVES: Respondent: Mr P Marincowitx, solicitor of Phillips Fox

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11333 of 2004 Stephen and Janet Allen and Stephen and Catherine Hawkes v Ku-ring-gai Municipal Council

JUDGMENT The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. The conditions are not reproduced as part of this decision but are available for inspection at the Council. A copy the Court's Orders and conditions may be obtained from the Court's registry on payment of a fee. For details of the fee payable and process for obtaining a copy of the Orders and conditions see the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 1 Senior Commissioner: This is an appeal against the refusal by Ku-ring-gai Council of a development application to demolish the existing dwelling and erect a detached dual occupancy development on lot 123 DP 3837, known as 32 Waratah Road, Turramurra. 2 The site is on the corner of Waratah Road and Tamboon Avenue. It is 1,300m2 in area. There is small single-storey house on it. To the east is 32 Waratah Road, a single-storey house. To the south is 4 Tamboon Avenue. The owners of both properties have objected to the development. 3 The relevant planning instrument is State Environmental Planning Policy 53 (SEPP 53). This Policy permits dual occupancy development in all residential areas. The applicant proposes to erect two two-storey dwellings on the site. The separation between the dwellings is about 9m. 4 The application was notified and attracted objections from four properties, including the neighbours to the south and east, Mr and Mrs Gale of 4 Tamboon Avenue and Mr and Mrs Speakman of 30 Waratah Road. At the on-site hearing two additional objectors were present, namely Ms Fessey of 20 Boronia Avenue, and Ms Hilary Cameron of 9 Tamboon Avenue, who supported the neighbours' objection. The main concern of Mr and Mrs Gale was that their living room windows would be overshadowed. Mr and Mrs Speakman had three concerns: loss of privacy in the study of their house and at the swimming pool in their rear yard, and the visual bulk of the proposal as seen from their rear yard. 5 The council refused the application on four grounds, the overlooking of 30 Waratah Avenue, the overshadowing of 4 Tamboon Avenue, the impact on a Red Bloodwood tree, and visual bulk. The evidence of Mr D Ford, an arborist appointed by the Court, resolved the council's concern regarding the tree. Mr Ford imposed conditions, which, in the opinion of both parties, would preserve the tree. This left the impact on privacy, sunlight and the visual bulk as issues.

Privacy 6 Loss of privacy was mainly a concern of Mr and Mrs Speakman, the owners of 30 Waratah Road,. The concern arises partly from the position of the second dwelling in what is now a rear yard, and partly from the fact that the ground floor of Dwelling 2 is above natural ground level. Ms K Gordon, a planning expert appointed by the Court, considered that overlooking would be reduced to an acceptable level by the construction of a standard fence with a lattice above.

Sunlight to 4 Tamboon Avenue 7 The north-facing windows of the living room and dining room of 4 Tamboon Avenue now receive mid-winter sunlight all day, ie 6 hours between 9 am and 3 pm. In Ms Gordon's opinion, if Dwelling 2 were built in the location shown in the application, the impact on the neighbour's sunlight would be unacceptable. If Dwelling 2 were moved 0.5m towards Waratah Road, the impact would reduce the sunlight access to about two-and-a-half hours. If Dwelling 2 were moved 1m, the sunlight access would be increased to just less than three hours. In Ms Gordon's opinion, this would be acceptable as it complies with the requirements of AMCORD. 8 Reducing six hours of sunlight to three is a considerable impact, even though it complies with AMCORD. I agree that around three hours of access to sunlight would be acceptable, but only if there were no design changes that would decrease the proposal's impact without reducing its development potential. If the impact results from poor design, then it is too significant to be acceptable. For this reason I requested the applicant to lower the ground floor level of Dwelling 2 by 500mm. This would result in decreasing the overlooking of 30 Waratah Road as well as the overshadowing of 4 Tamboon Avenue.

Bulk 9 In Ms Gordon's opinion, the bulk of the proposal, as seen from 30 Waratah Road, was acceptable. I agree with this assessment. A lowering of the ground floor level would further decrease the bulk. It would therefore go some way to meet Mr and Mrs Speakman's objection.

Landscape bond and tree preservation bond 10 The council proposed two conditions requiring monetary bonds or guarantees to be lodged guaranteeing · the maintenance of the landscaping for a three-year period and · the retention of four trees. 11 The applicant's advocate, Mr G McKee submitted that the Court did not have the power to impose bonds relating to landscaping on private land. In his submission, the only two sections of the Environmental Planning and Assessment Act 1979 that enabled monetary bonds or contributions to be required were s80A(6) and s94, and neither of these sections applied to landscaping or trees on private land. The council's advocate, M P Marincowitz, took issue. In his opinion a landscape bond can be imposed under the general power of s80A(1), a section that authorises conditions that relate to any matter referred to in s79C(1) of the Act. In Mr Marincowitz's submission, the maintenance of landscaping is clearly one of those matters. 12 Any condition of consent must withstand the so-called Newbury test, ie it must relate to the development, it must be for a planning purpose and it must be reasonable. In the case of the condition for a bond proposed by the council, the first and third tests are, in my opinion, satisfied, since the amount of the bond is not high. However, I do not think that the second test is satisfied. While I accept that the maintenance of landscaping is a planning purpose, I do not think that the lodgement of a bond that will be returned only if the landscaping is well maintained is also a planning purpose. If, at the end of the three-year period, the council finds that the landscaping is not well maintained, it cannot enter the applicant's property and plant trees on it. It most certainly could not (and would not) return once a week to water the seedlings. The bond would not achieve the planning purpose of healthy landscaping. And what would happen to the bond money? Would it go to the council's consolidated revenue? Would it be used for public landscaping elsewhere? In either of those cases it would no longer relate to the subject development. 13 I have considered the notion that a monetary bond may be seen as an incentive, in the sense that an applicant is more likely to look after the landscaping if this will lead to the return of the bond money. The incentive may therefore be considered to be the planning purpose. However, this kind of reasoning seems to me to move too far away from a proper application of the Newbury test. For this reason I have not imposed the two conditions requiring monetary bonds. However, Condition 88 requires that the landscaping be completed before the building can be occupied and that it be maintained in a satisfactory condition at all times. If the applicant fails to maintain the landscaping, the council can take action.

Conclusion of the matter 14 Moving Dwelling 2 by 1m towards Waratah Road and lowering the level of the ground floor by 500mm reduces the proposal's impact to an acceptable level. Following an adjournment, the applicant provided amended drawings that took on board these changes. Despite the changes Mr Speakman still objected to the proposal and wanted three further amendments: · The window of the first floor computer nook in Dwelling 2 should be in opaque glass. · The fence between his and the subject property should be erected at the commencement of works. · The height of the fence between Dwellings 1 and 2 should be increased from 1.5m to a sufficient height to prevent overlooking of his property from Dwelling 1. 15 The applicant agreed to erect the fence before the building works start. I do not think that the request for opaque glass is reasonable, given that Dwelling 2 is a reasonable distance from Mr Speakman's property. Similarly, the request to increase the fence height is also unreasonable. Ms Gordon suggested the 1.5m-height. The distance between Dwelling 1 and the rear yard of 30 Waratah Road is too large to require an increase in the fence height. 16 For the above reasons the appeal is upheld.

2. Development application to demolish the existing dwelling and erect a detached dual occupancy development on lot 123 DP 3837, known as 32 Waratah Road, Turramurra is determined by the granting of consent subject to the conditions in Annexure A.

3. The exhibits are returned, except Exhibits A, 4 and 5.

      Dr John Roseth
      Senior Commissioner

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.