Nicholas v Canterbury-Bankstown Council [2021] NSWLEC 1400

Nicholas v Canterbury-Bankstown Council [2021] NSWLEC 1400

The Court determined that the applicant's proposal to vary the height of building standard was well founded as the objectives of the standard and the zone were met despite non-compliance; the development achieved the necessary solar access requirements under the ADG; the setbacks on Kingsgrove Road, although non-compliant, fulfilled the objectives of the relevant controls and merited flexibility; and the window frames were to be deleted to ensure no encroachment beyond the boundary. Consequently, the development application should be approved subject to conditions.

Jurisdiction
Australia
Judgment Date
13 July 2021
Procedural Posture
Development Appeal / Final Judgment With Directions
Outcome
Development application approved subject to conditions; further directions made regarding BASIX certificate.
Legal Topics
['development Application' 'height of Building Standard' 'solar Access' 'design Standards' 'development Control Plan' 'variations From Planning Controls']
['planning and Environment'] ['development Application' 'height of Building Standard' 'solar Access' 'design Standards' 'development Control Plan' 'variations From Planning Controls']

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Procedural Posture

Development Appeal / Final Judgment With Directions

Legal Issues

  1. 1 ['Whether the proposed development can contravene the height of building development standard under cl 4.6 of the Canterbury Local Environmental Plan 2012' 'Whether adequate solar access is provided to apartments under the Apartment Design Guide' 'Whether window plenums should be deleted to comply with boundary controls' 'Whether the proposed setbacks comply with the CDCP and merit flexibility']

Ratio Decidendi

The Court determined that the applicant's proposal to vary the height of building standard was well founded as the objectives of the standard and the zone were met despite non-compliance; the development achieved the necessary solar access requirements under the ADG; the setbacks on Kingsgrove Road, although non-compliant, fulfilled the objectives of the relevant controls and merited flexibility; and the window frames were to be deleted to ensure no encroachment beyond the boundary. Consequently, the development application should be approved subject to conditions.

Court Disposition

Development application approved subject to conditions; further directions made regarding BASIX certificate.

Orders

  • ['Development application DA-499/2019 approved subject to conditions including deletion of window plenums (condition 2A) and dilapidation report with specified access attempts (condition 36).' 'Applicant to confirm status of BASIX Certificate and provide updated certificate if required by specified date.' 'Matter...