Aleksander Design Group Pty Limited v Great Lakes Council [2008] NSWLEC 1488

Aleksander Design Group Pty Limited v Great Lakes Council [2008] NSWLEC 1488

The appeal was upheld because, although the proposal did not comply with some numeric controls under DCP 21 and DCP 51, the Court gave significant weight to the recently adopted DCP 51, found that the proposal satisfied the relevant performance criteria and objectives on a merits assessment, would not cause unreasonable privacy, view loss, solar access, streetscape or amenity impacts, was consistent with the high density residential zoning and contemplated planning regime for the locality, and would not create an undesirable precedent for isolated lots. Conditions, including limits on rooftop pool use and approval of materials and finishes, addressed remaining impacts, and the Court...

Jurisdiction
Australia
Judgment Date
05 November 2008
Procedural Posture
Appeal Against Refusal of a Development Application / Consent Orders; Ex Tempore Judgment
Outcome
Appeal upheld; development application approved subject to conditions.
Legal Topics
['development Application for a Ten Storey Residential Flat Building' 'weight to Be Given to a Newly Adopted Development Control Plan' 'amenity Impacts on Adjoining Buildings' 'overshadowing' 'privacy' 'setbacks' 'streetscape and Precedent']
['planning and Environment Law' 'development Consent'] ['development Application for a Ten Storey Residential Flat Building' 'weight to Be Given to a Newly Adopted Development Control Plan' 'amenity Impacts on Adjoining Buildings' 'overshadowing' 'privacy' 'setbacks' 'streetscape and Precedent']

Case Brief

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Procedural Posture

Appeal Against Refusal of a Development Application / Consent Orders; Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the proposed ten-storey residential flat building at 43 Head Street, Forster should be approved despite non-compliance with numeric controls in DCP 21.' 'What weight should be given to Great Lakes Development Control Plan 51, which had recently been adopted after lodgement of the development application.' 'Whether the proposal would cause unacceptable impacts on adjoining properties in relation to solar access, privacy, views, setbacks, streetscape and amenity.' 'Whether approval would create an undesirable precedent for development of isolated or sandwich lots.' 'Whether the Court should exercise the function of concurrence under section 39(6) of the Land and Environment Court Act 1979.']

Ratio Decidendi

The appeal was upheld because, although the proposal did not comply with some numeric controls under DCP 21 and DCP 51, the Court gave significant weight to the recently adopted DCP 51, found that the proposal satisfied the relevant performance criteria and objectives on a merits assessment, would not cause unreasonable privacy, view loss, solar access, streetscape or amenity impacts, was consistent with the high density residential zoning and contemplated planning regime for the locality, and would not create an undesirable precedent for isolated lots. Conditions, including limits on rooftop pool use and approval of materials and finishes, addressed remaining impacts, and the Court...

Court Disposition

Appeal upheld; development application approved subject to conditions.

Orders

  • ['The appeal for No. 43 Head Street, Forster is upheld.' "The development application submitted to Great Lakes Council, as amended, is approved subject to the conditions contained in Annexure 'A'." 'The exhibits are returned with the exception of the architectural plans and the conditions.' 'The Court notes that...