Dwyer v Sutherland Shire Council [2018] NSWLEC 1543

Dwyer v Sutherland Shire Council [2018] NSWLEC 1543

The correct calculation of gross floor area (GFA) excludes voids above stairs, resulting in compliance with the maximum floor space ratio (FSR) control for both Dwellings 1B and 2A and the site. The studios are not capable of functioning as separate domiciles due to the imposition of conditions prohibiting shower and cooking facilities, and their use is ancillary to the primary dwellings. Despite technical non-compliance with the control for two/three storey development at the rear of the site, no unacceptable amenity or character impacts arise, and relevant planning objectives are met. Consent should be granted subject to appropriate conditions.

Jurisdiction
Australia
Judgment Date
17 October 2018
Procedural Posture
Appeal (class 1) Development Application / Final Judgment and Orders After Hearing
Outcome
Appeal upheld. Development application approved subject to conditions.
Legal Topics
['development Applications' 'floor Space Ratio (fsr)' 'ancillary Use' 'dual Occupancy' 'bulk and Scale' 'amenity Impacts']
['planning and Environment'] ['development Applications' 'floor Space Ratio (fsr)' 'ancillary Use' 'dual Occupancy' 'bulk and Scale' 'amenity Impacts']

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Procedural Posture

Appeal (class 1) Development Application / Final Judgment and Orders After Hearing

Legal Issues

  1. 1 ['Does the proposed development comply with maximum floor space ratio (FSR) requirements for Dwellings 1B and 2A and the site under the Sutherland Shire Local Environmental Plan 2015?' 'Are the proposed studios properly characterised as ancillary to the primary dwelling or as secondary dwellings forming part of multi-dwelling housing?' 'Do the proposed studios result in unacceptable amenity impacts (bulk, scale, overshadowing, privacy) inconsistent with development controls and local zone objectives?']

Ratio Decidendi

The correct calculation of gross floor area (GFA) excludes voids above stairs, resulting in compliance with the maximum floor space ratio (FSR) control for both Dwellings 1B and 2A and the site. The studios are not capable of functioning as separate domiciles due to the imposition of conditions prohibiting shower and cooking facilities, and their use is ancillary to the primary dwellings. Despite technical non-compliance with the control for two/three storey development at the rear of the site, no unacceptable amenity or character impacts arise, and relevant planning objectives are met. Consent should be granted subject to appropriate conditions.

Court Disposition

Appeal upheld. Development application approved subject to conditions.

Orders

  • ['The appeal is upheld.' 'Amended Development Application DA17/1774 for two studios above two detached garages (Dwellings 1B and 2A) at the rear of Lots 2 and 3 DP 15962, 1106 and 1108 Old Princes Highway, Engadine is approved, subject to the conditions in Annexure A.' 'The exhibits, except Exhibits 1 and A, are...