Waters v Ashfield Municipal Council [2011] NSWLEC 1255

Waters v Ashfield Municipal Council [2011] NSWLEC 1255

Having regard to the particular circumstances of the site, the relevant LEP and DCP controls, and the existing compromised side setback caused by the garage, the proposed modest lateral extension with a 900 mm setback would improve the visual appearance from the street, retain more rear garden area than a rear extension, would not materially change the setting of the house, and would meet the intent of the heritage controls; therefore Deferred Commencement Conditions 1 and 2 were not warranted and should be removed.

Jurisdiction
Australia
Judgment Date
15 August 2011
Procedural Posture
Class 1 Appeal Against Deferred Commencement Conditions Imposed on a Development Consent for Alterations and Additions to a Single Residential Semi Detached Dwelling. / Final Determination After Hearing; Ex Tempore Determination Edited Prior to Publication.
Outcome
The appeal is upheld and Deferred Commencement Conditions 1 and 2 of Part A of DA 10.2011.017 are removed.
Legal Topics
['deferred Commencement Conditions' 'side Setback and Vehicular Access' 'haberfield Heritage Conservation Area' 'residential Alterations and Additions' 'development Control Plan Compliance']
['planning and Environment' 'heritage Conservation' 'development Consent'] ['deferred Commencement Conditions' 'side Setback and Vehicular Access' 'haberfield Heritage Conservation Area' 'residential Alterations and Additions' 'development Control Plan Compliance']

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Procedural Posture

Class 1 Appeal Against Deferred Commencement Conditions Imposed on a Development Consent for Alterations and Additions to a Single Residential Semi Detached Dwelling. / Final Determination After Hearing; Ex Tempore Determination Edited Prior to Publication.

Legal Issues

  1. 1 ['Whether Deferred Commencement Conditions 1 and 2 requiring removal of the lateral extension and retention of access to the rear yard should be removed.' 'Whether the proposed lateral side extension and 900 mm side setback were acceptable having regard to the Haberfield Heritage Conservation Area controls in the Ashfield Local Environmental Plan 1985 and Ashfield Development Control Plan 2007.' 'Whether the proposal would materially change the setting of the existing house or unacceptably affect side separation, views to the rear yard, and the heritage character of Haberfield.']

Ratio Decidendi

Having regard to the particular circumstances of the site, the relevant LEP and DCP controls, and the existing compromised side setback caused by the garage, the proposed modest lateral extension with a 900 mm setback would improve the visual appearance from the street, retain more rear garden area than a rear extension, would not materially change the setting of the house, and would meet the intent of the heritage controls; therefore Deferred Commencement Conditions 1 and 2 were not warranted and should be removed.

Court Disposition

The appeal is upheld and Deferred Commencement Conditions 1 and 2 of Part A of DA 10.2011.017 are removed.

Orders

  • ['The appeal is upheld.' 'Deferred Commencement Conditions 1 and 2 of Part A of DA 10.2011.017 are removed.' 'The exhibits are returned to the parties with the exception of Exhibits 1, 4, 5, A, B, and C.']