Land and Environment Court of New South Wales CITATION : Steve Nolan Constructions Pty Limited v Ku-ring-gai Council [2010] NSWLEC 1362 APPLICANT Steve Nolan Constructions Pty Limited PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 10939 of 2010 CORAM: Tuor C KEY ISSUES: CONSENT ORDERS - DEVELOPMENT MODIFICATION :- objectors concerns LEGISLATION CITED: Environmental Planning and Assessment Act 1979 DATES OF HEARING: 23 December 2010 EX TEMPORE JUDGMENT DATE : 23 December 2010 APPLICANT Mr G McKee (Solicitor) SOLICITOR McKees Legal Solutions LEGAL REPRESENTATIVES: RESPONDENT Ms K Morton (Solicitor) SOLICITOR Sparke Helmore Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 23 December 2010 10939 of 2010 Steve Nolan Constructions Pty Ltd -v- Ku-ring-gai Council This determination was given extemporaneously and has been edited prior to publication JUDGMENT 1 COMMISSIONER: This is an appeal under s96 of the Environmental Planning and Assessment Act 1979 to amend a development application to construct a residential flat building at 26 - 30 Marian Street, Killara. The proposal seeks to delete the approved masonry balustrades on the balconies and replace them with glazed balustrades. The issues in dispute between the parties have been resolved and the parties are seeking consent orders from the Court. 2 The issues that remain are those raised by objectors. A councillor spoke on behalf of the residents and raised concerns in relation to the heritage context of the proposal and the inappropriateness of the glazing rather than masonry. She also raised issues in relation to overlooking of the property on the other side of Marion Street and the characteristics of glazing in terms of noise and thermal performance. She was also concerned that the units had been sold with masonry balustrades and that the change to glazing may result in future issues for council. 3 Mr McKee, for the applicant, addressed the concerns raised by the objectors. He referred to the agreement between the heritage experts and the planning experts that the proposed glazing of the balconies was acceptable within the heritage context of the site. In particular, the use of materials, coloured brickwork and banding are referenced from nearby heritage buildings in the street. In the absence of any heritage evidence to the contrary, I accept that the proposal will have an acceptable heritage impact. 4 In relation to overlooking of the opposite property, the balconies are opaque glazing and are set back a significant distance with intervening vegetation. I accept that the use of glazing rather than masonry will not result in unreasonable privacy impacts on nearby properties. 5 Council did not raise issues of noise and thermal performance of glazing in comparison to masonry. Due to the oblique angle and the distance of the balconies from the Pacific Highway it would be unlikely that there would be any unacceptable noise impacts. There is no evidence before the Court that glazing would be unacceptable or that its acoustic or thermal performance is significantly inferior to masonry to warrant refusal of the application. 6 In relation to the sale of the units with masonry balconies, the contractual arrangements between the owner of the property and the purchasers are not a relevant matter for consideration by the Court. 7 For these reasons, I accept that the issues between the parties have been resolved and that the consent orders sought by the parties may be granted. Orders 8 The Court orders by consent that: 1 The appeal is upheld. 2 The applicant is granted leave to rely on amended plans: + S-01 – Ground Floor and Site Plan, Revision A, prepared by SD Masterplan, dated 08/12/2010, + Drawing No. S-02 – Typical Floor Plan, Revision A, prepared by SD Masterplan dated 08/12/2010 + Drawing No. S-06 – North Elevations, Revision A, prepared by SD Masterplan dated 08/12/2010 + Drawing No. S-07 – East Elevations, Revision A, prepared by SD Masterplan dated 08/12/2010 + Drawing No. S-08 – South Elevations, Revision A, prepared by SD Masterplan dated 08/12/2010 + Drawing No. S-09 – West Elevations, Revision A, prepared by SD Masterplan dated 08/12/2010 + Drawing No. SK100 – Balustrade Details to Comply with BCA 3 The Modification Application No.MOD0180/10 lodged pursuant to section 96(8) of the Environmental Planning and Assessment Act in relation to Lot 28 DP 1153757, being 26-30 Marian Street, Killara, is approved subject to condition of consent contained in Annexure "A". 4 The exhibits, except Exhibits 2, 4 and A, are returned. ___________________ Annelise Tuor Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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