Lysenko v Ku-ring-gai Council [2005] NSWLEC 132

Lysenko v Ku-ring-gai Council [2005] NSWLEC 132

The Court accepted the Court-appointed town planning expert's conclusions that the proposed setbacks, separation and amended stormwater arrangements were acceptable in the streetscape, that adequate regard had been given to relevant design requirements under SEPP 53 and the Ku-ring-gai Planning Scheme Ordinance, and that the proposal would retain a satisfactory and acceptable level of solar access to the adjoining property and internally. There was therefore no reason why approval should not be granted.

Jurisdiction
Australia
Judgment Date
29 March 2005
Procedural Posture
Appeal Against Refusal of Development Application / On Site Hearing; Ex Tempore Judgment
Outcome
Appeal upheld; development application approved subject to conditions.
Legal Topics
['development Application' 'dual Occupancy Development' 'residential Zoning' 'streetscape' 'setbacks' 'solar Access' 'overshadowing']
['environmental Planning and Assessment' 'land and Environment'] ['development Application' 'dual Occupancy Development' 'residential Zoning' 'streetscape' 'setbacks' 'solar Access' 'overshadowing']

Case Brief

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Procedural Posture

Appeal Against Refusal of Development Application / On Site Hearing; Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the proposed detached dual occupancy development was acceptable in terms of streetscape, including front and side setbacks and visual bulk.' 'Whether the proposed development would cause unacceptable overshadowing of the adjoining property at 47 Kedumba Crescent or unacceptable internal overshadowing.' 'Whether adequate regard had been given to the design requirements in cl 32(a) and cl 32(h) of SEPP 53 and relevant requirements in Schedule 9 of the Ku-ring-gai Planning Scheme Ordinance.']

Ratio Decidendi

The Court accepted the Court-appointed town planning expert's conclusions that the proposed setbacks, separation and amended stormwater arrangements were acceptable in the streetscape, that adequate regard had been given to relevant design requirements under SEPP 53 and the Ku-ring-gai Planning Scheme Ordinance, and that the proposal would retain a satisfactory and acceptable level of solar access to the adjoining property and internally. There was therefore no reason why approval should not be granted.

Court Disposition

Appeal upheld; development application approved subject to conditions.

Orders

  • ['The appeal is upheld.' 'DA 1650/03 for the erection of a detached dual occupancy at 43 and 45 Kedumba Crescent, North Turramurra is approved subject to the conditions in Annexure A.' 'The exhibits are returned with the exception of Exhibits 1, 2, 3 and A.']