Shaw v Hornsby Shire Council [2006] NSWLEC 79

Shaw v Hornsby Shire Council [2006] NSWLEC 79

The proposal should not be approved because it was a two-storey dwelling on a battleaxe allotment contrary to the clear and unambiguous DCP prescriptive measure requiring single-storey development, and the non-compliance was not shown to be necessary. Although privacy was resolved and overshadowing complied with the DCP solar access requirements, the proposal would create avoidable additional overshadowing, unacceptable presentation of building bulk, and restriction of neighbours' outlook. Applying Pafburn, the adverse impacts of a non-complying and unnecessary design were harder to justify.

Jurisdiction
Australia
Judgment Date
20 February 2006
Procedural Posture
Development Application Appeal / Ex Tempore Judgment After on Site Hearing
Outcome
Appeal dismissed; development application refused.
Legal Topics
['development Application' 'dwelling House' 'battleaxe Allotment' 'building Height' 'residential Amenity' 'development Control Plan' 'planning Principle']
['environmental and Planning Law'] ['development Application' 'dwelling House' 'battleaxe Allotment' 'building Height' 'residential Amenity' 'development Control Plan' 'planning Principle']

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Procedural Posture

Development Application Appeal / Ex Tempore Judgment After on Site Hearing

Legal Issues

  1. 1 ['Whether Development Application No. 755/04 for a two storey dwelling house on a battleaxe shaped allotment should be approved despite non-compliance with the Hornsby Shire Dwelling House Development Control Plan single-storey height prescriptive measure.' 'Whether the proposal would have unacceptable impacts on neighbouring properties, including height, bulk and scale, privacy, solar access and outlook or views.' 'Whether the planning principle in Pafburn v North Sydney [2005] NSWLEC 444 justified refusal where impacts arose from a proposal that failed to comply with planning controls.']

Ratio Decidendi

The proposal should not be approved because it was a two-storey dwelling on a battleaxe allotment contrary to the clear and unambiguous DCP prescriptive measure requiring single-storey development, and the non-compliance was not shown to be necessary. Although privacy was resolved and overshadowing complied with the DCP solar access requirements, the proposal would create avoidable additional overshadowing, unacceptable presentation of building bulk, and restriction of neighbours' outlook. Applying Pafburn, the adverse impacts of a non-complying and unnecessary design were harder to justify.

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed.' 'The Development Application No. 755/04 for the erection of a dwelling house at No. 334 Malton Road, North Epping is determined by the refusal of the development application.' 'Exhibit C is retained.']