CATCHWORDS:
Section 96 Application :- delete condition that requires removal of swimming pool, whether substantially the same development, noise, excavation, damp and impact on tree.

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Leichhardt Local Environmental Plan 2000

CASES CITED:
Vacik Pty Limited v Penrith City Council (unreported, NSW LEC, Stein J, 18 February 1992)
Sydney City Council v Ilenace Pty Limited (1984) 3 NSWLR 414
North Sydney Council v Michael Standley & Associates Pty Limited (1998) 97 LGERA 433
Motor Projects (No 2) Pty Limited v North Sydney Council, 1999 106 LGERA 298

CORAM:
Tuor C

DATES OF HEARING:
25/01/2008

EX TEMPORE DATE:
25 January 2008

LEGAL REPRESENTATIVES

APPLICANT
Mr D Baird, solicitor
Maddocks

RESPONDENT
Ms J Walsh, solicitor
Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Tuor C
25 January 2008
11035 of 2007 Mark Morris v Leichhardt Council

JUDGMENT

This is an appeal against the refusal by Leichhardt Council (the council) of an application under s 96 of the Environmental Planning and Assessment Act to amend a development consent (D2006/219) for 68 Darling Street, Balmain (the site).
The description of the development in the Notice of Determination dated 12 December 2006 is:
basement, ground and first floor alterations and additions to existing dwelling, and associated works, including new commercial and studio building and associated parking fronting Darling Street.
The development application included a lap pool. Condition 1(b) of the development consent stated:
Development consent is not granted for the proposed swimming pool. Any swimming pool shall be subject to a separate Development Application should the applicant wish to pursue the construction of a swimming pool on the site.
The s 96 application seeks the deletion of condition 1(b) and thereby the approval of the lap pool.
The lap pool is proposed to be 25m long by 2.7m wide with a variable depth of 1.2m to 2m. It is set back 1m from the existing house and between 820mm to 1257mm from the boundary of 64A Darling Street to the exterior wall of the pool and between 220mm and 650mm from the edge of the pool coping to the common boundary. The applicant has agreed to remove the coping.
The adjoining house (64A Darling Street) is built to the common boundary for a length of approximately 4.5m and set back about 350mm from the boundary for a further length of about 4.5m. It has areas of open space that adjoin the north and south end of the proposed pool. A large Celtis tree is located on the boundary. The south-east corner of the pool is proposed to be approximately 3m from the trunk of this tree.
Further details of the site, its context and the history of the application are in the amended Statement of Facts and Contentions.

Planning controls

The site is zoned part…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Morris v Leichhardt Council

Details

AGLC: Morris v Leichhardt Council [2008] NSWLEC 1106
Case: [2008] NSWLEC 1106
Decision Date: 25 January 2008

CaseChat Overview and Summary

Mark Morris appealed against the refusal of the Leichhardt Council to grant an application to amend a development consent under section 96 of the Environmental Planning and Assessment Act 1979, to allow the construction of a lap pool at 68 Darling Street, Balmain. The application sought to delete a condition of the consent which required the removal of the lap pool. The primary concern of the residents of 64A Darling Street, who opposed the application, was the potential noise and other impacts of the pool on their residential amenity. Ms L Wasylenko, the resident, argued that the proposed development was not substantially the same as the approved development and that the construction had not complied with the consent. The court held that the proposed development was substantially the same as the approved development and that the inclusion of the lap pool was not a radical alteration of the approved development. The court was satisfied that the proposed development would not result in adverse noise impacts, damage to the neighbouring property, dampness, or significant impact on the Celtis tree on the boundary.

The court granted the application to modify the development consent and included specific conditions to address the concerns of the residents, such as the height of the fence and the excavation of the pool. The court ordered that the exhibits, except Exhibit 5, may be returned.

Orders