Allaby v Ku-ring-gai Council (2)

[2009] NSWLEC 1286

Land and Environment Court

of New South Wales

CITATION:

Allaby v Ku-ring-gai Council (2) [2009] NSWLEC 1286

PARTIES:

APPLICANT
Mark and Susan Allaby

RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):

10880 of 2008

CORAM:

Hussey C

KEY ISSUES:

SECTION 96 MODIFICATION :- Swimming pool, impact on rock shelf

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Ku-ring-gai PSO

DATES OF HEARING:

18/08/2009

EX TEMPORE JUDGMENT DATE:

18 August 2009

LEGAL REPRESENTATIVES:

APPLICANT
Ms C Rose (solicitor)
SOLICITOR
Maddocks Solicitors

RESPONDENT
Ms L Finn (solicitor)
SOLICITOR
HWL Ebsworth Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

18 August 2009

10880 of 2008 Mark and Susan Allaby v Ku-ring-gai Council

This determination was given extemporaneously
and has been edited prior to publication

JUDGMENT

Background.

1 This matter concerns Section 96 application to modify a consent granted by the Court for the construction of a new dwelling and associated facilities at 29 Allard Avenue, Roseville Chase. The original application included a swimming pool located atop of a prominent rock shelf and the conditions of consent deleted the swimming pool.

2 The proposed modification involves minor detailing arrangements for the dwelling to incorporate a revised layout for a smaller pool, which does not significantly impact on the existing rock shelf.

The evidence

3 Mr I Glendinning, the applicant’s planner described the redesigned pool as being reduced in size from 52sq m to 40sq m and located to sit above the rock ledge. It is cantilevered by between 0.4m to 1.2m beyond the edge of the rock shelf. The balance tank is projected a further 0.5m and below the terrace level. The exposed edge of the pool and balance tank are treated by an applied rock tile finish to blend with the surrounding rock face. The sitout area has been reduced in size to approximately to 40sq m to accommodate the swimming pool and spa.

4 As the modifications are minor and do not alter the building envelope, Mr Glendinning considers the modifications reasonably satisfy the objectives of council’s DCP No 38 and that it will not have any detrimental visual impact when viewed from properties below or the street. Consequently he supports this application.

5 Council has reviewed the application and raised no objections, with the parties now agreeing to consent orders.

Conclusions

6 Having considered the submissions, I am firstly satisfied that this s96 application relates to the same development. Also that it has been notified and there are no objections. With regards to the merits, I am also satisfied that the reduction in the size of the pool and it relocation, thus avoiding the under-croft and support structure covering the rock face, now does reasonably satisfy the DCP controls. In this regard I rely on the evidence of Mr Glendinning and am satisfied the consent orders should be granted.

7 The Court orders by consent:

1 The appeal is upheld.
2 Consent is granted to the s.96 modification application dated 15 July 2009 subject to conditions which are annexure “A” hereto.
________________________
R Hussey
Commissioner of the Court
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