Benson McCormack Pty Ltd v Leichhardt Municipal Council [2012] NSWLEC 1062

Benson McCormack Pty Ltd v Leichhardt Municipal Council [2012] NSWLEC 1062

The proposal was refused because the first floor addition did not respond adequately to the natural topography or the Desired Future Character controls, produced excessive height and bulk including a rear wall elevation over 7 m where a 6 m wall height was identified as appropriate, did not satisfy the side setback variation criteria by minimising bulk and scale, would adversely affect the amenity of No 66 Campbell Street through the elevated plunge pool and glass splash barrier, and would have a detrimental impact on the original contributory cottage in the Balmain Heritage Conservation Area by projecting beyond and above the hipped roof form in a manner inconsistent with its Victorian...

Jurisdiction
Australia
Judgment Date
06 March 2012
Procedural Posture
Class 1 Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No D/2010/85 / Mandatory Conciliation and Arbitration Under S 34 AA of the Land and Environment Court Act 1979; No Agreement Reached and Proceedings Determined by the Court
Outcome
Appeal dismissed; development application refused consent.
Legal Topics
['development Application for Alterations and Additions to Existing Dwelling' 'height and Bulk' 'privacy' 'view Sharing' 'heritage Conservation Area' 'residential Character' 'side Setbacks']
['environmental Planning and Assessment' 'development Control' 'heritage Conservation'] ['development Application for Alterations and Additions to Existing Dwelling' 'height and Bulk' 'privacy' 'view Sharing' 'heritage Conservation Area' 'residential Character' 'side Setbacks']

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Procedural Posture

Class 1 Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No D/2010/85 / Mandatory Conciliation and Arbitration Under S 34 AA of the Land and Environment Court Act 1979; No Agreement Reached and Proceedings Determined by the Court

Legal Issues

  1. 1 ['Whether the proposed first floor addition would adversely impact the visual setting of the existing small detached cottage and heritage items in the vicinity of the site' 'Whether the proposal was inconsistent with the Desired Future Character of the Mort Bay Distinctive Neighbourhood' 'Whether the non-compliance with the side setback variation criteria in Part B1.2 of Leichhardt Development Control Plan 2000 was acceptable' 'Whether the proposal would adversely affect residential amenity of adjoining and nearby properties by reason of height, bulk, character, privacy and views']

Ratio Decidendi

The proposal was refused because the first floor addition did not respond adequately to the natural topography or the Desired Future Character controls, produced excessive height and bulk including a rear wall elevation over 7 m where a 6 m wall height was identified as appropriate, did not satisfy the side setback variation criteria by minimising bulk and scale, would adversely affect the amenity of No 66 Campbell Street through the elevated plunge pool and glass splash barrier, and would have a detrimental impact on the original contributory cottage in the Balmain Heritage Conservation Area by projecting beyond and above the hipped roof form in a manner inconsistent with its Victorian...

Court Disposition

Appeal dismissed; development application refused consent.

Orders

  • ['The appeal is dismissed.' 'Development Application No. D/2010/85 for a first floor addition, a plunge swimming pool and a single carport is refused consent.' 'The exhibits, other than exhibits 1, 3, 4 and B, are returned.']