74B Trafalgar Street Pty Limited v Leichhardt Council [2010] NSWLEC 1358

74B Trafalgar Street Pty Limited v Leichhardt Council [2010] NSWLEC 1358

The amended proposal complied with the DCP solar access requirements by providing more than four hours of mid-winter solar access to the rear windows of 3 Collins Street, and the limited additional solar access provided by a parapet scheme between 9am and 9.40am did not justify departing from the desired future character favouring hipped and gabled roof forms. The proposal was within the building envelope, its side setback was consistent with the street, and despite exceeding the FSR control, the building was of acceptable bulk and form and met the objectives of the FSR control. The SEPP 1 objection was therefore well founded and approval was warranted.

Jurisdiction
Australia
Judgment Date
16 November 2010
Procedural Posture
Appeal Against Refusal of a Development Application Under the Environmental Planning and Assessment Act 1979 / Ex Tempore Judgment
Outcome
Appeal upheld; development application approved subject to conditions.
Legal Topics
['development Application Refusal' 'remediation, Demolition, Construction of Two Dwellings and Torrens Title Subdivision' 'overshadowing and Solar Access' 'desired Future Character' 'floor Space Ratio' 'side Setback' 'state Environmental Planning Policy No 1 Objection']
['planning and Environment Law' 'development Control'] ['development Application Refusal' 'remediation, Demolition, Construction of Two Dwellings and Torrens Title Subdivision' 'overshadowing and Solar Access' 'desired Future Character' 'floor Space Ratio' 'side Setback' 'state Environmental Planning Policy No 1 Objection']

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Procedural Posture

Appeal Against Refusal of a Development Application Under the Environmental Planning and Assessment Act 1979 / Ex Tempore Judgment

Legal Issues

  1. 1 ["Whether the proposal's roof form should be altered to minimise overshadowing of 3 Collins Street." 'Whether the half hip roof form was consistent with the desired future character for the Trafalgar Street Distinctive Neighbourhood.' 'Whether non-compliance with the floor space ratio control and numerical side setback controls warranted refusal or alteration of the proposal.' 'Whether the objection under State Environmental Planning Policy no 1 – Development Standards was well founded.']

Ratio Decidendi

The amended proposal complied with the DCP solar access requirements by providing more than four hours of mid-winter solar access to the rear windows of 3 Collins Street, and the limited additional solar access provided by a parapet scheme between 9am and 9.40am did not justify departing from the desired future character favouring hipped and gabled roof forms. The proposal was within the building envelope, its side setback was consistent with the street, and despite exceeding the FSR control, the building was of acceptable bulk and form and met the objectives of the FSR control. The SEPP 1 objection was therefore well founded and approval was warranted.

Court Disposition

Appeal upheld; development application approved subject to conditions.

Orders

  • ['The appeal is upheld.' 'The development application (D 2009/474) for remediation of the site, demolition of existing buildings and construction of two new dwellings with Torrens Title subdivision at 74B Trafalgar Street, Annandale, is approved subject to the conditions in Annexure A.' 'The exhibits, except...