Moussa v Burwood Council [2023] NSWLEC 1640

Moussa v Burwood Council [2023] NSWLEC 1640

Development consent was warranted because the primary heritage significance of the Site lay in views from Liverpool Road and the Liverpool Road/Claremont Road corner, and that significance would be retained. The rear of the Site had been extensively modified and contained intrusive elements; proposed Lot B, although the smallest in the heritage conservation areas, was not unacceptable merely by size, as there was variation in surrounding lot sizes and shapes and the proposed frontage was consistent with Claremont Road. The proposed landscaping, new fence and conditions would assist compatibility with the character and streetscape. The Court was satisfied that the subdivision would not...

Jurisdiction
Australia
Judgment Date
27 October 2023
Procedural Posture
Class 1 Development Appeal / Appeal Against Refusal of Development Application; Final Judgment After Conciliation Conference Terminated and Hearing Proceeded
Outcome
The appeal is upheld and development consent is granted subject to conditions in Annexure A.
Legal Topics
['development Consent' 'subdivision' 'demolition' 'heritage Conservation Area' 'curtilage' 'development Control Plan' 'residential Development']
['environmental Planning and Assessment' 'land and Environment' 'heritage Conservation'] ['development Consent' 'subdivision' 'demolition' 'heritage Conservation Area' 'curtilage' 'development Control Plan' 'residential Development']

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Procedural Posture

Class 1 Development Appeal / Appeal Against Refusal of Development Application; Final Judgment After Conciliation Conference Terminated and Hearing Proceeded

Legal Issues

  1. 1 ['Whether consent should be granted for demolition of ancillary structures, two-lot Torrens title subdivision, construction of a fence to Claremont Road and planting of trees at 72 Liverpool Road, Burwood Heights.' 'Whether the Proposed Development would adversely affect the heritage significance of the Appian Way Heritage Conservation Area and adjacent Badminton Road and Culdees Road Heritage Conservation Area under cl 5.10 of the Burwood Local Environmental Plan 2012.' 'Whether the proposed subdivision and future development potential of Lot B would be inconsistent with the established subdivision and development pattern, curtilage, setting and character of the heritage conservation areas.']

Ratio Decidendi

Development consent was warranted because the primary heritage significance of the Site lay in views from Liverpool Road and the Liverpool Road/Claremont Road corner, and that significance would be retained. The rear of the Site had been extensively modified and contained intrusive elements; proposed Lot B, although the smallest in the heritage conservation areas, was not unacceptable merely by size, as there was variation in surrounding lot sizes and shapes and the proposed frontage was consistent with Claremont Road. The proposed landscaping, new fence and conditions would assist compatibility with the character and streetscape. The Court was satisfied that the subdivision would not...

Court Disposition

The appeal is upheld and development consent is granted subject to conditions in Annexure A.

Orders

  • ['The appeal is upheld.' 'Development application no DA.10.2022.74.1 for subdivision of land, construction of a fence to Claremont Road, planting of trees and demolition of ancillary structures is determined by granting consent to the application subject to the conditions in Annexure A.']