Attard v Ku-ring-gai Council [2009] NSWLEC 1070

Attard v Ku-ring-gai Council [2009] NSWLEC 1070

Development consent should be granted only in restricted terms because some proposed works were acceptable with conditions, but elements that would intrude on or diminish the heritage setting and viewing of Craignairn in the round were not justified. The pergolas were acceptable with agreed planting; Burns Road hedging had to be opened and maintained to preserve an historic full-height viewing corridor; the southern arm of the Cleveland Street path and relocation of the freestanding garage doorway were inappropriate heritage intrusions; a condition, not a covenant, was sufficient to prohibit a kitchen in the freestanding garage; the proposed attached garage/workshop would create...

Jurisdiction
Australia
Judgment Date
10 March 2009
Procedural Posture
Appeal Concerning Development Application 0409/08 / Judgment After Hearing
Outcome
Appeal to be upheld and development consent to be granted in substantially more restricted terms, excluding the proposed ground-floor alterations to the freestanding garage and the proposed attached garage/workshop, subject to revised plans and conditions.
Legal Topics
['development Application' 'local Heritage Item' 'additions and Alterations' 'heritage Curtilage' 'viewing in the Round' 'conditions of Consent']
['planning and Environment' 'heritage Conservation'] ['development Application' 'local Heritage Item' 'additions and Alterations' 'heritage Curtilage' 'viewing in the Round' 'conditions of Consent']

Case Brief

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Procedural Posture

Appeal Concerning Development Application 0409/08 / Judgment After Hearing

Legal Issues

  1. 1 ['Whether proposed pergola structures attached to the teahouse and near the swimming pool enclosure should be approved or deleted.' 'Whether openings should be required in hedging along Burns Road to preserve views of Craignairn.' 'Whether the Cleveland Street pedestrian path should have a single route to the house or an additional southern arm around the freestanding garage.' 'Whether alterations to the freestanding garage, including relocation of a doorway and partitioning of the loft, should be approved and whether prohibition on a kitchen should be by covenant or condition.' 'Whether the proposed attached double garage/workshop with loft media room at the rear of the house should be approved.' "Whether the agreed revised location of the tennis court should be moved further from the eastern neighbour's boundary."]

Ratio Decidendi

Development consent should be granted only in restricted terms because some proposed works were acceptable with conditions, but elements that would intrude on or diminish the heritage setting and viewing of Craignairn in the round were not justified. The pergolas were acceptable with agreed planting; Burns Road hedging had to be opened and maintained to preserve an historic full-height viewing corridor; the southern arm of the Cleveland Street path and relocation of the freestanding garage doorway were inappropriate heritage intrusions; a condition, not a covenant, was sufficient to prohibit a kitchen in the freestanding garage; the proposed attached garage/workshop would create...

Court Disposition

Appeal to be upheld and development consent to be granted in substantially more restricted terms, excluding the proposed ground-floor alterations to the freestanding garage and the proposed attached garage/workshop, subject to revised plans and conditions.

Orders

  • ['The appeal will be upheld.' 'Development Application 0409/08 for additions and alterations, including a new tennis court and swimming pool but not including the proposed alterations to the ground floor of the freestanding garage or the erection of an attached garage/workshop, to Craignairn, 37 Burns Road,...