Allaby v Ku-ring-gai Council [2009] NSWLEC 1142

Allaby v Ku-ring-gai Council [2009] NSWLEC 1142

The amended dwelling and landscaping design meet planning control requirements and do not unreasonably impact the natural environment or neighborhood amenity, but the pool atop the sandstone ledge would intrude upon a significant natural feature and does not merit consent. Conditional development approval is appropriate with deletion of the pool component and a deferred commencement condition regarding excavation management.

Parties
Applicant: Mark & Susan Allaby; Respondent: Ku-ring-gai Council
Jurisdiction
Australia
Judgment Date
12 May 2009
Procedural Posture
Appeal Against Refusal of Development Application / Judgment After Hearing
Outcome
Appeal upheld in part; conditional development consent granted except for the pool component.
Legal Topics
Development Application, Dwelling House, Landscape Protection, Excavation Controls, Residential Zoning, Visual Impact, Amenity
Planning Law Environmental Law Local Government Development Application Dwelling House Landscape Protection Excavation Controls Residential Zoning +2 more

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Parties

Mark & Susan Allaby

Applicant

Ku-ring-gai Council

Respondent

Procedural Posture

Appeal Against Refusal of Development Application / Judgment After Hearing

Legal Issues

  1. 1 Whether the proposed development is consistent with the objectives of the relevant planning controls
  2. 2 Whether the pool component unreasonably impacts the natural sandstone rock ledge
  3. 3 Adequacy of amenity and compatibility with environmental character

Ratio Decidendi

The amended dwelling and landscaping design meet planning control requirements and do not unreasonably impact the natural environment or neighborhood amenity, but the pool atop the sandstone ledge would intrude upon a significant natural feature and does not merit consent. Conditional development approval is appropriate with deletion of the pool component and a deferred commencement condition regarding excavation management.

Court Disposition

Appeal upheld in part; conditional development consent granted except for the pool component.

Orders

  • The appeal is upheld.
  • Development consent is granted to DA 0587/08 for the demolition of the existing dwelling and outbuildings at 29 Allard Avenue, Roseville Chase and construction of a new dwelling and garage, excluding the pool component, subject to conditions.