Concept Plus v Auburn Council [2002] NSWLEC 12

Concept Plus v Auburn Council [2002] NSWLEC 12

Although most alleged non-compliances with the development control plan did not justify refusal in the circumstances of an infill site, the proposed third or uppermost storey would cause unacceptable overshadowing of living-area windows in two ground-floor flats in the adjoining building to the south, reducing sunlight below the development control plan standard. On that basis the development application failed and the appeal was dismissed.

Jurisdiction
Australia
Judgment Date
30 October 2001
Procedural Posture
Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Ex Tempore Judgment
Outcome
Appeal dismissed.
Legal Topics
['development Application for Residential Flat Building' 'development Control Plan Non Compliance' 'overshadowing' 'infill Development' 'streetscape Character' 'overdevelopment']
['planning and Environment' 'development Control' 'residential Development'] ['development Application for Residential Flat Building' 'development Control Plan Non Compliance' 'overshadowing' 'infill Development' 'streetscape Character' 'overdevelopment']

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Procedural Posture

Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether non-compliance with the Residential Flat Building Development Control Plan 2000 warranted refusal of the development application.' 'Whether the proposed residential flat building would unacceptably overshadow habitable room windows in the adjoining building to the south.' 'Whether the proposed building was out of character with the streetscape.' 'Whether the allocation of private courtyards to the four ground-floor units was inequitable.' 'Whether the proposed development constituted overdevelopment of the site.']

Ratio Decidendi

Although most alleged non-compliances with the development control plan did not justify refusal in the circumstances of an infill site, the proposed third or uppermost storey would cause unacceptable overshadowing of living-area windows in two ground-floor flats in the adjoining building to the south, reducing sunlight below the development control plan standard. On that basis the development application failed and the appeal was dismissed.

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal is dismissed.' 'The exhibits may be returned.']