Bailey v Hurstville City Council [2006] NSWLEC 698

Bailey v Hurstville City Council [2006] NSWLEC 698

The proposed two-storey rear dwelling was inconsistent with the building form required by Development Control Plan No. 11 and the Interim Residential Development Code, which contemplated a rear dwelling on a corner dual occupancy site having the general form of a single storey dwelling or room-in-roof style. Giving determinative weight to those controls, and having regard to the smaller effective site area, inconsistency with the established residential character, and inadequate assessment of overshadowing, the Court found the development inconsistent with objective (a) of Zone 2 under cl 8(3) of Hurstville Local Environmental Plan 1994, so the development application had to be refused.

Jurisdiction
Australia
Judgment Date
09 November 2006
Procedural Posture
Appeal Against Refusal of Development Application / Judgment
Outcome
Appeal dismissed; development application refused.
Legal Topics
['development Application' 'dual Occupancy Development' 'development Control Plan Compliance' 'residential Zone Objectives' 'building Height and Storeys' 'overshadowing']
['planning and Environment Law'] ['development Application' 'dual Occupancy Development' 'development Control Plan Compliance' 'residential Zone Objectives' 'building Height and Storeys' 'overshadowing']

Case Brief

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Procedural Posture

Appeal Against Refusal of Development Application / Judgment

Legal Issues

  1. 1 ['Whether the proposed detached dual occupancy complied with the 1.5 storey building form required by Development Control Plan No. 11 for corner sites.' 'Whether determinative or significant weight should be given to Development Control Plan No. 11 and related planning controls.' 'Whether the proposed two-storey dwelling was consistent with the established residential character and amenity of the area and objective (a) of Zone 2 under Hurstville Local Environmental Plan 1994.' 'Whether adequate regard had been given to overshadowing, particularly to the private open space of the existing dwelling on the site.']

Ratio Decidendi

The proposed two-storey rear dwelling was inconsistent with the building form required by Development Control Plan No. 11 and the Interim Residential Development Code, which contemplated a rear dwelling on a corner dual occupancy site having the general form of a single storey dwelling or room-in-roof style. Giving determinative weight to those controls, and having regard to the smaller effective site area, inconsistency with the established residential character, and inadequate assessment of overshadowing, the Court found the development inconsistent with objective (a) of Zone 2 under cl 8(3) of Hurstville Local Environmental Plan 1994, so the development application had to be refused.

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed.' 'DA 00718/2004 for the erection of a second dwelling to create a detached dual occupancy development at 21 Mavis Ave, Peakhurst is refused.' 'The exhibits are returned.']