Gardner & Anor v City of Canada Bay Council [2012] NSWLEC 1259

Gardner & Anor v City of Canada Bay Council [2012] NSWLEC 1259

The proposed carport did not satisfy the objectives of the Development Control Plan because the narrow site and siting of the dwelling meant the carport would become the dominant feature, adversely affect views of the dwelling, and be inconsistent with a streetscape that did not have carports forward of dwellings, although an uncovered on-site parking space with concrete strips, retained landscaping, replacement street tree and capacity for an 85-percentile vehicle could be granted consent subject to appropriate conditions.

Jurisdiction
Australia
Judgment Date
13 September 2012
Procedural Posture
Class 1 Development Application Appeal / Onsite Hearing After Mandatory Conciliation Conference Was Terminated Under S 34 Aa(2)(b) of the Land and Environment Court Act 1979
Outcome
Directions made for the parties to submit agreed conditions reflecting the matters raised in the judgment to allow final orders to be made.
Legal Topics
['development Application Refusal' 'carport Within Front Building Alignment' 'development Control Plan Compliance' 'streetscape Impact' 'off Street Parking']
['planning and Environment' 'development Consent'] ['development Application Refusal' 'carport Within Front Building Alignment' 'development Control Plan Compliance' 'streetscape Impact' 'off Street Parking']

Case Brief

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Procedural Posture

Class 1 Development Application Appeal / Onsite Hearing After Mandatory Conciliation Conference Was Terminated Under S 34 Aa(2)(b) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the proposed carport within the front building alignment complied with the council's planning controls, particularly as to streetscape, landscaping, design and layout." 'Whether the proposed carport would obscure the existing dwelling, become the dominant feature on the site, or adversely affect the streetscape.' 'Whether consent would create an undesirable precedent.' 'Whether an alternate uncovered off-street parking space could be acceptable subject to conditions.']

Ratio Decidendi

The proposed carport did not satisfy the objectives of the Development Control Plan because the narrow site and siting of the dwelling meant the carport would become the dominant feature, adversely affect views of the dwelling, and be inconsistent with a streetscape that did not have carports forward of dwellings, although an uncovered on-site parking space with concrete strips, retained landscaping, replacement street tree and capacity for an 85-percentile vehicle could be granted consent subject to appropriate conditions.

Court Disposition

Directions made for the parties to submit agreed conditions reflecting the matters raised in the judgment to allow final orders to be made.

Orders

  • ['The parties are to submit agreed conditions that reflect the matters raised in this judgment, in particular those in [28].' 'Those conditions are to be provided in electronic format by 4pm Friday 14 September to allow the making of final orders.']