Commitment Pty Ltd v Georges River Council [2021] NSWLEC 1428

Commitment Pty Ltd v Georges River Council [2021] NSWLEC 1428

The appeal was dismissed because the Proposed Development had an unacceptable streetscape. The proposed upper passing bay and access driveway did not comply with AS2890, were located in a prohibited position near the Chamberlain Street and Podmore Avenue intersection, placed part of the passing bay in Council's road reserve, and did not achieve the relevant HDCP performance criteria for safe and convenient vehicle access. The Court also found that the front setback acoustic barrier and fencing were not compatible with the local character and could not satisfy both the visual permeability requirements of consideration C9 and the privacy and security requirements of consideration C21 of the...

Jurisdiction
Australia
Judgment Date
27 July 2021
Procedural Posture
Class 1 Development Appeal Against Refusal of Development Application Da2020/0050 / Final Judgment and Orders
Outcome
Appeal dismissed; development application refused.
Legal Topics
['child Care Centre Development Application' 'streetscape Compatibility' 'access Driveway and Passing Bay' 'child Care Planning Guideline' 'development Control Plan Flexibility' 'traffic and Parking Impacts']
['planning and Environment Law' 'development Consent' 'land and Environment Court Class 1 Proceedings'] ['child Care Centre Development Application' 'streetscape Compatibility' 'access Driveway and Passing Bay' 'child Care Planning Guideline' 'development Control Plan Flexibility' 'traffic and Parking Impacts']

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Procedural Posture

Class 1 Development Appeal Against Refusal of Development Application Da2020/0050 / Final Judgment and Orders

Legal Issues

  1. 1 ['Whether the proposed upper car passing bay, located in part on Council land outside the front boundary of the Subject Site, was acceptable.' 'Whether the streetscape of the Proposed Development was compatible with the character of the local area, particularly in relation to the front setback.' 'Whether the Proposed Development satisfied relevant considerations in the Child Care Planning Guideline, including considerations C5, C9 and C21.' 'Whether non-compliances with AS2890 and related HDCP controls should be accepted as reasonable alternative solutions under s 4.15(3A)(b) of the Environmental Planning and Assessment Act 1979.']

Ratio Decidendi

The appeal was dismissed because the Proposed Development had an unacceptable streetscape. The proposed upper passing bay and access driveway did not comply with AS2890, were located in a prohibited position near the Chamberlain Street and Podmore Avenue intersection, placed part of the passing bay in Council's road reserve, and did not achieve the relevant HDCP performance criteria for safe and convenient vehicle access. The Court also found that the front setback acoustic barrier and fencing were not compatible with the local character and could not satisfy both the visual permeability requirements of consideration C9 and the privacy and security requirements of consideration C21 of the...

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed;' 'Development Application DA2020/0050 seeking consent for demolition of existing structures and construction of a 60 place child care centre with basement car parking at 36 Chamberlain Street, Narwee, is determined by way of refusal;' 'The exhibits are returned, with the exception of...