Gabb v Ku-ring-gai Council [2009] NSWLEC 1255

Gabb v Ku-ring-gai Council [2009] NSWLEC 1255

The reduced setback did not warrant approval because, in the context of the approved two storey built form, the driveway and garage presentation, and adjoining local heritage items, the dwelling would be visually prominent and would adversely affect the streetscape if brought forward. A 14.2 metre setback was appropriate to maintain the visual character and landscaped setting of this part of Grosvenor Street, and the benefit of retaining the existing brick outbuilding did not justify the streetscape cost.

Jurisdiction
Australia
Judgment Date
02 July 2009
Procedural Posture
Appeal Under S 96(6) of the Environmental Planning and Assessment Act 1979 Concerning a Modification Application to Vary or Delete a Setback Condition of Development Consent / Ex Tempore Judgment After Hearing and Site View
Outcome
Section 96 modification appeal dismissed in part; reduced setback refused and turning bay approved subject to consolidated conditions.
Legal Topics
['section 96 Modification' 'front Setback' 'turning Bay and Driveway Configuration' 'streetscape Character' 'heritage Items and Urban Conservation Area' 'development Control Plan']
['planning and Environment' 'development Control' 'heritage'] ['section 96 Modification' 'front Setback' 'turning Bay and Driveway Configuration' 'streetscape Character' 'heritage Items and Urban Conservation Area' 'development Control Plan']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal Under S 96(6) of the Environmental Planning and Assessment Act 1979 Concerning a Modification Application to Vary or Delete a Setback Condition of Development Consent / Ex Tempore Judgment After Hearing and Site View

Legal Issues

  1. 1 ['Whether the approved dwelling should be permitted to have a reduced front setback from the setback conditioned by Council, having regard to streetscape and nearby heritage items.' 'Whether the turning bay, driveway, front fence and outbuilding conditions should be modified in the consolidated conditions of consent.']

Ratio Decidendi

The reduced setback did not warrant approval because, in the context of the approved two storey built form, the driveway and garage presentation, and adjoining local heritage items, the dwelling would be visually prominent and would adversely affect the streetscape if brought forward. A 14.2 metre setback was appropriate to maintain the visual character and landscaped setting of this part of Grosvenor Street, and the benefit of retaining the existing brick outbuilding did not justify the streetscape cost.

Court Disposition

Section 96 modification appeal dismissed in part; reduced setback refused and turning bay approved subject to consolidated conditions.

Orders

  • ['The section 96 modification appeal for the property known as No. 20 Grosvenor Street, Wahroonga is dismissed in part.' 'The modification application submitted to Ku-ring-gai Council is determined by the refusal of the reduced setback and approval of the turning bay as shown in the consolidated conditions contained...