King v Waverley Council

[2005] NSWLEC 317

Land and Environment Court

of New South Wales

CITATION:

King v Waverley Council [2005] NSWLEC 317

PARTIES:

APPLICANT
Les King

RESPONDENT
Waverley Council

FILE NUMBER(S):

10220 of 2005

CORAM:

Brown C

KEY ISSUES:

Development Application :- Consent Orders - construction of two swimming pools - privacy - noise

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Waverley Local Environmental Plan 1996

DATES OF HEARING:

27/05/2005

EX TEMPORE JUDGMENT DATE:

05/27/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr P. Jackson, solicitor
SOLICITORS
Pike Pike & Fenwick

RESPONDENT
Mr G. Hartley, solicitor
SOLICITORS
Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

27 May 2005

10220 of 2005 Les King v Waverley Council

JUDGMENT

1 The matter comes before the Court for Consent Orders in relation DA 753/2004 for the construction of two swimming pools to the rear of a residential flat building at 13 Bayview Street, Bronte.

2 The site is zoned Residential 2(b) under Waverley Local Environmental Plan 1996. The proposed use is permissible in this zone.

3 In accordance with the Court’s Practice Direction: Consent Orders, the opportunity is given to anyone who objected to that development application to be heard before the Court in the making of the Consent Orders. In this regard, Mrs Symonds of No 7 Bayview Street, provided evidence to the Court. She raised a number of issues and these related to the proximity of the swimming pools to her rear yard, potential privacy impacts, noise, the inappropriate use of water and the absence of conditions regulating the use of the pool.

4 In considering her concerns, I am of the view that there is no reason why the Consent Orders should not be made. I will address each individually.

5 I do not accept that the pools are large enough to encourage activities that would generate a large amount of noise, although it would be fair to say that there is no barrier to this happening. In my view, this would more probably be a rare event rather than a regular occurrence.

6 The issue of privacy is appropriately addressed through the erection of a fence between the subject property and Mrs Symond’s property. I accept that the details of the fencing form part of the previous approval granted by the council for the residential flat building.

7 In relation to noise, I accept the expert acoustical evidence provided by the applicant regarding the ability to control noise impact from the pool pump. With this matter addressed by conditions, I accept that noise from the pool pump is not likely to be a problem. The issue of noise from people using the pool is not likely to be a regular event, as previously stated. Even if the pools were not constructed, this area is still a private recreation area for the dwellings area and the potential for noise still exists. I do not accept that the pools would increase the potential for noise to such an extent that it would warrant the refusal of the application.

8 The question of whether the pools are inappropriate because of the current water restrictions is a matter probably beyond the scope of the Court to consider. Pools are still a permissible use at this time however if appropriate legislation was to be created to prohibit pools then the Court would need to consider this legislation.

9 I also do not accept that conditions should be placed on the use of the pools. It is a residential environment and I do not accept that any impacts are likely to occur on a regular basis. In any event, there are other means available to control noise if it became a problem.

10 For those reasons I endorse the consent orders.

11 The orders of the Court are.

1. The appeal is upheld.

2. Development Application 753/2004 for the construction of 2 swimming pools at 13 Bayview Street, Bronte, is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of Exhibits A and 2.

4. No order as to costs.

_______________________

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