Alafaci v Hurstville City Council [2004] NSWLEC 415

Land and Environment Court of New South Wales

CITATION : Alafaci v Hurstville City Council [2004] NSWLEC 415 APPLICANT Anthony Alafaci PARTIES : RESPONDENT Hurstville City Council FILE NUMBER(S) : 10323 of 2004 CORAM: Hoffman C Development Application :- Swimming pool KEY ISSUES: location partly in an escarpment area s.88(b) instrument on title limiting structures near escarpment obstruction f views. Environmental Planning and Assessment Act 1979 Conveyancing Act 1919 LEGISLATION CITED: Hurstville Local Environmental Plan 1994 Swimming Pool Act 1992 Swimming Pool Regulations 1992 CASES CITED: DATES OF HEARING: 18/06/2004 EX TEMPORE 06/18/2004 JUDGMENT DATE :

APPLICANT Mr C McEwen, barrister SOLICITOR Gilbert & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr S Griffiths, solicitor SOLICITORS Pike, Pike and Fenwick

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hoffman C

18 June 2004

10323 of 2004 Anthony Alafaci v Hurstville City Council

JUDGMENT 1 This was a class 1 appeal 10323 of 2004 between Anthony Alafaci and Hurstville City Council in regard to refusal of consent upon review pursuant of s 82A of the Environmental Planning and Assessment Act 1979 of a swimming pool and ancillary works at lot 37/44 Woodlands Avenue, Lugarno, also known as 3 Coachwood Place, Lugarno. 2 There had been an approval for a new dwelling on the site and it had been constructed but the conditions excluded the swimming pool and necessitated a further application to be made. That application was made and was the subject of this appeal and when the parties came to Court consent orders were sought. It seemed that the objectors to the pool, a Mr and Mrs Neil of 47 Woodlands Avenue, had withdrawn their objection as per Exhibit 3. They had been concerned that the pool fencing might obstruct their views of the natural escarpment and been a blot on their aspect. Also there was a s 88B Instrument on title as in Exhibit 4. That restricted any structure under cl 11(i) of that instrument within the escarpment area. The pool would penetrate into the escarpment area, including the fence on the boundary beside it. 3 The negotiations between the parties had revealed that the pool would still remain substantially below ground and be excavated into the rock except for its southern end, which would be about 800 mm above the rock surface due to the land sloping down to a cliff face in the escarpment. The parties had concluded that the impact of the structure on the escarpment was minor and acceptable and therefore the application for consent orders was forthcoming in Exhibit 1.