Auspacific Equity Investments Pty Ltd v Pittwater Council [2004] NSWLEC 281

Auspacific Equity Investments Pty Ltd v Pittwater Council [2004] NSWLEC 281

The appeal was dismissed because the proposed development for the rear Foamcrest Avenue portion lacked adequate side boundary setbacks, did not provide an appropriate landscaped setting, and excessively relied on adjoining sites for solar access, privacy and amenity, particularly given the number of units oriented over side boundaries. The proposal also failed to provide the requisite amount of retail carparking under council's Development Control Plan No. 2. These matters made the development unsatisfactory in terms of likely impacts and site suitability under s 79C(1)(b) and (c) of the Environmental Planning and Assessment Act.

Jurisdiction
Australia
Judgment Date
11 May 2004
Procedural Posture
Appeal Under S 97 of the Environmental Planning and Assessment Act Against Refusal of a Development Application / Verbal Judgment Determining the Appeal
Outcome
Appeal dismissed; development consent refused.
Legal Topics
['development Application' 'shop Top Housing' 'bulk, Height and Scale' 'solar Access' 'internal Amenity' 'carparking' 'landscaping' 'state Environmental Planning Policy No. 65' 'development Control Plans']
['planning and Environment' 'development Consent'] ['development Application' 'shop Top Housing' 'bulk, Height and Scale' 'solar Access' 'internal Amenity' 'carparking' 'landscaping' 'state Environmental Planning Policy No. 65' 'development Control Plans']

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Procedural Posture

Appeal Under S 97 of the Environmental Planning and Assessment Act Against Refusal of a Development Application / Verbal Judgment Determining the Appeal

Legal Issues

  1. 1 ['Whether the proposed development was appropriate because of its height, bulk and scale having regard to council controls.' 'Whether the landscaping satisfied council controls and requirements in a numeric and qualitative sense.' 'Whether the proposed development was appropriate or satisfactory when assessed under State Environmental Planning Policy No. 65.' 'Whether future residential amenity would be satisfactory having regard to possible development on adjoining Foamcrest Avenue sites.' 'Whether the development control plan requirements for carparking were satisfied.' 'Whether the proposal would affect the functionality of council carparking areas adjoining the Foamcrest Avenue portion of the site.' 'Whether the proposal was appropriate in view of potential redevelopment of adjoining sites and resulting impacts.']

Ratio Decidendi

The appeal was dismissed because the proposed development for the rear Foamcrest Avenue portion lacked adequate side boundary setbacks, did not provide an appropriate landscaped setting, and excessively relied on adjoining sites for solar access, privacy and amenity, particularly given the number of units oriented over side boundaries. The proposal also failed to provide the requisite amount of retail carparking under council's Development Control Plan No. 2. These matters made the development unsatisfactory in terms of likely impacts and site suitability under s 79C(1)(b) and (c) of the Environmental Planning and Assessment Act.

Court Disposition

Appeal dismissed; development consent refused.

Orders

  • ['The appeal in respect of the property known as 343-345 Barrenjoey Road, Newport, is dismissed.' 'The development application submitted to Pittwater Council, and as amended, is determined by the refusal of consent.' 'The exhibits are returned.']