Udler v Waverley Council [2013] NSWLEC 1173

Udler v Waverley Council [2013] NSWLEC 1173

Although the proposed first floor addition extended beyond the predominant rear building line, that was not determinative because the DCP allowed such a proposal if justified. The relevant criteria were satisfied: there was no dispute about compliance with floor space ratio, building height, landscaped and open space, side setback and vegetation controls; the visual bulk and enclosure impacts on adjoining properties were not unreasonable; solar access requirements were met; any mid-winter afternoon daylight reduction was insufficient to require a greater setback; and retaining the original dwelling and roof form positively contributed to the Queens Park Heritage Conservation Area and...

Jurisdiction
Australia
Judgment Date
20 September 2013
Procedural Posture
Class 1 Appeal Against Conditions Imposed on Approval of Development Application Da541/2012 / Mandatory Conciliation and Arbitration Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated Without Agreement; Proceedings Dealt With Forthwith and Judgment Delivered With Orders to Be Made in Chambers on Filing Amended Plans and Conditions.
Outcome
Appeal upheld; development application approved subject to conditions, with orders to be made in chambers after filing amended plans and conditions reflecting the judgment.
Legal Topics
['development Application' 'alterations and Additions to Existing Dwelling' 'rear Building Line' 'heritage Conservation Area' 'residential Amenity' 'solar Access' 'visual Bulk']
['planning and Environment Law'] ['development Application' 'alterations and Additions to Existing Dwelling' 'rear Building Line' 'heritage Conservation Area' 'residential Amenity' 'solar Access' 'visual Bulk']

Case Brief

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Procedural Posture

Class 1 Appeal Against Conditions Imposed on Approval of Development Application Da541/2012 / Mandatory Conciliation and Arbitration Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated Without Agreement; Proceedings Dealt With Forthwith and Judgment Delivered With Orders to Be Made in Chambers on Filing Amended Plans and Conditions.

Legal Issues

  1. 1 ['Whether the proposed first floor rear setback beyond the predominant rear building line was acceptable under the applicable planning controls.' 'Whether the proposed additions would cause unacceptable bulk, loss of daylight or amenity impacts on adjoining properties and the Queens Park Heritage Conservation Area.' 'Whether conditions requiring reductions to the rear first floor additions and alterations to the garage/cabana should remain imposed.']

Ratio Decidendi

Although the proposed first floor addition extended beyond the predominant rear building line, that was not determinative because the DCP allowed such a proposal if justified. The relevant criteria were satisfied: there was no dispute about compliance with floor space ratio, building height, landscaped and open space, side setback and vegetation controls; the visual bulk and enclosure impacts on adjoining properties were not unreasonable; solar access requirements were met; any mid-winter afternoon daylight reduction was insufficient to require a greater setback; and retaining the original dwelling and roof form positively contributed to the Queens Park Heritage Conservation Area and...

Court Disposition

Appeal upheld; development application approved subject to conditions, with orders to be made in chambers after filing amended plans and conditions reflecting the judgment.

Orders

  • ['The appeal is upheld.' 'Development Application DA541/2012 for alterations and additions to an existing dwelling at 58 Queens Park Road, Queens Park is approved subject to the conditions in Annexure A.' 'The exhibits, other than exhibits A and B, are returned.']