Hew v Ku-ring-gai Council

[2012] NSWLEC 1209

Land and Environment Court (NSW)|2012-07-27

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2012-07-27

Catchwords

DEVELOPMENT APPLICATION: Consent orders
townhouse development
draft LEP

Source

Original judgment source is linked above.

Catchwords

DEVELOPMENT APPLICATION: Consent orderstownhouse developmentdraft LEP

Judgment (10 paragraphs)

[1]

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

[2]

Planning framework 6The site is located with Zone No 2(d3), pursuant to the KPSO (Folio 286, Exhibit 1). 7Subclause 25E(1) of the KPSO states: Consent may be granted to development for the purpose of an attached dual occupancy, a detached dual occupancy, a residential flat building, three or more townhouses or villas or any other form of multi-unit housing on land to which this Part applies only if the land has an area of at least 1,200 square metres. 8Subclause 25I(4) of the KPSO states: Despite clause 25E, multi-unit housing may be carried out within Zone No 2 (d3) on a site that has a site area of less than 1.200 square metres, or a street frontage of less than 23 metres, if the proposed development complies with all other requirements of this Ordinance. 9The maximum number of storeys permitted is 3, pursuant to subclause 25I(5) of the KPSO and the maximum height permitted is 10.3 m, pursuant to the table to subclause 25I(8). 10Subclause 25I(9) of the KPSO states: Any storey which is used exclusively for car parking, storage or plant, or a combination of them, in accordance with the requirements of this Ordinance and no part of which (including any wall or ceiling which encloses or defines the storey) is more than 1.2 metres above ground level, is not to be counted as a storey for the purpose of the Table to subclause (8). 11Ground level is defined by the KPSO, at clause 25B, as: Ground level means the natural level of the ground before the erection of any building or carrying out of any work. 12Clause 25L of the KPSO, Zone interface, includes the following: (1) The objective of this clause is to provide a transition in the scale of buildings between certain zones. (2) The third and fourth storey of any building on land within Zone No 2 (d3) must be set back at least 9 metres from any boundary of the site of the building with land (other than a road) that is not within Zone No 2 (d3). (3) Landscaping required to screen development from any adjoining property must be provided on the site and must not rely on landscaping on the adjoining property. 13Under the provisions of the draft Ku-ring-gai Local Centres Local Environment Plan 2012 (draft LEP), the site is proposed to be down-zoned to R2 and located within the C18 Yarabah Avenue heritage conservation area (HCA).

[5]

Findings 21The meaning of 'natural ground level' in the KPSO was considered by Acting Senior Commissioner (ASC) Brown in Staldone Corporation Pty Ltd v Ku-ring-gai Council [2012] NSWLEC 1055. ASC Brown relevantly found, at par 35 and 36: 35 First, the definition should be given its ordinary meaning. The fact that there are other different definitions of "ground level" in the Ordinance, in my view, supports the submissions of Mr Staunton. The definition in cl 25B post-dates the other definitions so it is clearly open for the Court to conclude that the draftsperson, for whatever reason, sought to distinguish the definition in cl 25B from the other definitions. Clearly, the draftsperson could have adopted either of the two existing definitions. I do not accept the submissions of Mr Robson that for the sake of consistency, the definition in cl 25B should be given a similar meaning to the other definitions when the terms of the definition in cl 25B suggest the opposite. 36 Second, the terms of the definition support Mr Staunton's submissions. The definition contains no reference to a specific period of time or temporal requirement such as the time "immediately prior to the lodgement of the development application" in Part IV of the Ordinance. The relevant references, in terms of interpretation, are to the "natural level of the ground" and "before with the erection of any (my emphasis) buildings or carrying out of any work ". Without any temporal requirement, it is clearly open for the Court to conclude that a reference to the natural level of land is a reference to the state of the land in its natural state and prior to any man-made activities. 22While I am not bound by ASC Brown's findings, (Segal & Anor v Waverley Council [2005] NSWCA 310), I agree with his interpretation of the meaning of 'natural ground level' in the KPSO. In considering the competing submissions, 'natural ground level' should be given its ordinary meaning. It follows that the ground level is the approximate level of the coping of the swimming pool and not the excavated bottom of the pool. The basement parking level, therefore, does not constitute a storey as it is less than 1.2 m above ground level and the proposal is two storeys high. 23The proposal satisfies subclause 25I(4), permitting a multi-unit housing development on land zoned 2(d3) with a site area less than 1200 m2, as the proposal complies with all other requirements of the KPSO. 24Consequently, a SEPP 1 objection to subclause 25L(2) of the KPSO is not required. However, for abundant caution, I have reviewed the SEPP 1 objection prepared by the applicant's planning expert, Mr Greg Boston and I accept its conclusion and find that the SEPP 1 objection is well founded.

Hew v Ku-ring-gai Council

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Judgment (10 paragraphs)

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