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

Land and Environment Court of New South Wales

CITATION : Allaby v Ku-ring-gai Council [2009] NSWLEC 1142 This decision has been amended. Please see the end of the judgment for a list of the amendments.

APPLICANT Mark & Susan Allaby PARTIES : RESPONDENT Ku-ring-gai Council

FILE NUMBER(S) : 10880 of 2008

CORAM: Hussey C

KEY ISSUES: DEVELOPMENT APPLICATION :- Dwelling house - consistency with zone objectives, impact on natural land forms/rock ledge.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Ku-ring-gai Planning Scheme Ordinance

CASES CITED: Double Bay Marina v Woollahra Council [2009] NSWLEC 1001 Super Studio v Waverley [2004] NSWLEC 91

DATES OF HEARING: 16 and 17 February 2009

DATE OF JUDGMENT: 12 May 2009

APPLICANT Mr S. Kondilios, solicitor of Maddocks Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Mr A. Pickles, barrister Instructed by Ebsworth Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hussey C

12 May 2009

10880 of 2008 Mark & Susan Allaby v Ku-ring-gai Council

JUDGMENT Background 1 This appeal was lodged against council's refusal of a development application for the demolition of an existing dwelling and subsequent construction of a new 2-storey dwelling at 29 Allard Avenue, Roseville Chase. The proposed dwelling is situated generally on the footprint of the existing dwelling and comprises: o Upper level; bedroom, en-suite, deck and ancillary rooms, o Ground floor level; living rooms opening onto elevated, north facing terraces adjacent to an elevated 9m x 3m pool, with an exposed wet edge that overhangs the existing rock shelf. Also on this level are ancillary rooms, a bedroom opening to a courtyard and lanai and a detached double garage. o Lower level; bedroom, bathroom, media room, wine cellar and other ancillary rooms. 2 A number of contentions were identified, which are summarized as follows for convenience: o Amenity and environmental character compatibility, with particular reference to the visual impacts of the pool component in the context of the rock ledge. o Impact on the natural environment, with particular reference to the amount of excavation of the natural sandstone on the site. The site 3 This site is situated on the western side of Allard Street. It has an area of 1492 sq m and a street frontage of 21.63m. The existing dwelling is situated towards the southern boundary of the lot, atop a significant sandstone ledge. The land generally falls from the southwest to the northeast to an extent of approximately 12m over the ledge.