McCallum v Pittwater Council [2010] NSWLEC 1136

Land and Environment Court of New South Wales

CITATION : McCallum v Pittwater Council [2010] NSWLEC 1136 This decision has been amended. Please see the end of the judgment for a list of the amendments.

APPLICANT Glenda McCallum PARTIES : RESPONDENT Pittwater Council

FILE NUMBER(S) : 10123 of 2010

CORAM: Dixon C

KEY ISSUES: DEVELOPMENT CONSENT :- construction of a timber deck

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Pittwater Local Environmental Plan 1993 Pittwater 21 Development Control Plan

DATES OF HEARING: 24 May 2010

EX TEMPORE JUDGMENT DATE : 24 May 2010

APPLICANT Dr S. Bervelling (barrister)

LEGAL REPRESENTATIVES: RESPONDENT Mr Jaku (lawyer) SOLICITOR Mallesons Stephen Jaques

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Dixon C

24 May 2010

10123 of 2010 Glenda McCallum v Pittwater Council This determination was given extemporaneously and has been edited prior to publication

JUDGMENT

Introduction 1 This is a class 1 appeal pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979, (the Act) against the refusal of Pittwater Council of DA0417/09 for the construction of a deck on the rear of a property at 36 Norma Road, Palm Beach (the site). 2 The main issues are the setback of the deck from the rear boundary of the site and excessive site coverage. 3 Following a view of the site and the objectors' property and a consideration of the relevant matters under s 79C(1) of the Act, I have decided to approve the application subject to conditions which require the deck to be setback 2 metres from the rear north eastern boundary except for an area of 1.8 metres on the boundary needed to accommodate the existing pool cover. The reasons for my decision are set out below. Jurisdiction 4 The class 1 application describes this appeal as "…the replacement of existing elevated deck adjoining an existing swimming pool under the Environmental Planning and Assessment Act of New South Wales 1979 as amended." Similarly, the applicant's statement of facts and contentions reply filed on 17 April 2010 describes the development as "…a rebuilding of a deck". 5 As a consequence of that description, when the hearing commenced, the council raised the issue of my jurisdiction to deal with the application. In response, the applicant confirmed that the appeal was, in fact, an appeal under s97 of the Act against council's refusal of a development application for a new deck and approval to use the existing piers as supports for the deck. The applicant confirmed that she does not make a claim for existing use or seek retrospective approval of any built structure on the site. 6 Based on the above, I am satisfied that I have jurisdiction to hear and determine this application under section 97(1) of the Act. Background 7 The site has an area of 517 m2 and contains a dwelling, swimming pool, garage, pathways and patios. Access is from Norma Road with a driveway to the garage. 8 The site is of an irregular shape. It has a 35m north western boundary and a 32m south eastern boundary. The front (south western) boundary is 15m and the rear (north eastern) boundary is 15m. The site falls steeply (about 12.23m or 36.5%) from the high south western boundary to the lower north eastern boundary. There are no boundary fences between the residential properties in the Palm Beach locality. The dwelling on the site is multi-storey and orientated, as are the adjoining multi-storey dwellings, toward the north east with magnificent views of the water and the beach. The Proposal 9 The proposal is for the construction of timber deck with a height ranging from natural ground level to 2.6m. The elevated deck is to be located adjacent to the existing pool and intended to provide access to the pool area and a private open space for entertaining. Statutory Controls. 10 The relevant planning controls are detailed in the statement of facts and contentions filed with the Court on 25 March 2010. They include: Pittwater Local Environmental Plan 1993, Pittwater 21 Development Control Plan (DCP 21) clause D12.6 Side and rear building lines, clause D12.10 Site Coverage –Environmentally Sensitive Land, clause D12.13 Construction, Retaining walls, terracing and undercroft areas, Pittwater DCP 22 Exempt and Complying Developments, State Environmental Planning Policy Exempting Applying Development Codes 2008, Draft Pittwater 21 Local Environmental Plan Geotechnical Risk Management Policy for Pittwater 2009. 11 There is no issue about the permissibility of the deck on the site. The land is zoned 2(a) (Residential A) under the Pittwater Local Environmental Plan 1993 and the deck is permissible with consent. Council's actions 12 The development application was lodged with council on 2 October 2009 and advertised in accordance with council's notification policy. The owners of the property adjoining the site at its north-eastern boundary lodged a written objection to the application. That objection raises concerns about: the positioning of the deck from the rear setback; privacy, bulk and scale; site coverage, geotechnical stability; and the impact of the development on existing trees. 13 On 17 February 2010, council, under delegated authority, refused the application after a merit assessment on the grounds set out in the notice of refusal, (exhibit 1). The contentions, which reflect the grounds of refusal, are set out in part B of the facts and contentions as follows: