Baenziger Coles Pty Ltd v Bega Valley Shire Council [2015] NSWLEC 1427

Baenziger Coles Pty Ltd v Bega Valley Shire Council [2015] NSWLEC 1427

The proposal was properly characterised as a single dwelling because its spatial planning, single entry, centrally located vertical circulation spine and awkward alternative access did not lend themselves to two separate domiciles. However, the uppermost gym and terrace created a conspicuous 'pop up' element that unacceptably affected panoramic views from 15 and 17 Weemilah Drive and did not satisfy the height standard objectives of protecting residential amenity and views. With deletion of that gym and terrace, and deletion of disputed conditions 8, 9 and 21, the proposal was acceptable and development consent could be granted.

Jurisdiction
Australia
Judgment Date
19 October 2015
Procedural Posture
Class 1 Appeal Pursuant to S 97 of the Environmental Planning and Assessment Act 1979 (nsw) Against Deemed Refusal of Development Application No. 2014.439 / Hearing Held Forthwith After Mandatory Conciliation Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated; Principal Judgment and Orders
Outcome
Appeal upheld; Development Application No. 2014.439 approved subject to conditions of consent at Annexure A.
Legal Topics
['characterisation of Development as Dwelling or Attached Dual Occupancy' 'clause 4.6 Exception to Height of Buildings Development Standard' 'height, Bulk and Scale' 'view Impact and Outlook' 'conditions of Development Consent']
['environmental Planning and Assessment' 'development Consent' 'land and Environment Court Appeals'] ['characterisation of Development as Dwelling or Attached Dual Occupancy' 'clause 4.6 Exception to Height of Buildings Development Standard' 'height, Bulk and Scale' 'view Impact and Outlook' 'conditions of Development Consent']

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Procedural Posture

Class 1 Appeal Pursuant to S 97 of the Environmental Planning and Assessment Act 1979 (nsw) Against Deemed Refusal of Development Application No. 2014.439 / Hearing Held Forthwith After Mandatory Conciliation Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated; Principal Judgment and Orders

Legal Issues

  1. 1 ['Whether the development application was appropriately characterised as a single dwelling or as an attached dual occupancy capable of separate occupation' 'Whether contravention of the 7.5m height of buildings development standard was justified under cl 4.6 of Bega Valley Local Environment Plan 2013' 'Whether the height, bulk and scale of the proposal unreasonably affected streetscape character and outlook from adjoining properties' 'Whether disputed conditions 8, 9 and 21 should be deleted']

Ratio Decidendi

The proposal was properly characterised as a single dwelling because its spatial planning, single entry, centrally located vertical circulation spine and awkward alternative access did not lend themselves to two separate domiciles. However, the uppermost gym and terrace created a conspicuous 'pop up' element that unacceptably affected panoramic views from 15 and 17 Weemilah Drive and did not satisfy the height standard objectives of protecting residential amenity and views. With deletion of that gym and terrace, and deletion of disputed conditions 8, 9 and 21, the proposal was acceptable and development consent could be granted.

Court Disposition

Appeal upheld; Development Application No. 2014.439 approved subject to conditions of consent at Annexure A.

Orders

  • ['The appeal is upheld.' 'Development Application No. 2014.439 for the demolition of existing structures and the construction of a new dwelling is approved, subject to the conditions of consent at Annexure A.' 'The exhibits, other than exhibits 1, 5, E and A, are returned.']