Bird & anor v Parramatta City Council [2015] NSWLEC 1046

Bird & anor v Parramatta City Council [2015] NSWLEC 1046

The appeal was upheld because, although the proposal did not comply with some Parramatta Development Control Plan 2011 provisions for a battle-axe allotment, the dwelling complied with the Parramatta Local Environmental Plan 2011 height and FSR controls, was a permissible dwelling in the R2 zone, and in the site's particular sloping and constrained circumstances the split-level design was a reasonable alternative whose privacy, visual and open-space impacts could be reduced to an acceptable level by amended plans and conditions.

Jurisdiction
Australia
Judgment Date
06 February 2015
Procedural Posture
Class 1 Appeal Under S 97(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application Da/83/2014 / Mandatory Conciliation Under S 34 AA of the Land and Environment Court Act 1979 Did Not Resolve the Matter; Proceeded to Hearing and Final Orders
Outcome
Appeal upheld; development application determined by consent subject to annexed conditions and amended plans.
Legal Topics
['development Application for Tree Removal and Split Level Dwelling' 'battle Axe Allotment' 'height and Storey Controls' 'setbacks' 'private Open Space' 'amenity Impacts on Adjoining Properties' 'development Control Plan Flexibility']
['planning and Environment Law' 'development Consent' 'residential Development'] ['development Application for Tree Removal and Split Level Dwelling' 'battle Axe Allotment' 'height and Storey Controls' 'setbacks' 'private Open Space' 'amenity Impacts on Adjoining Properties' 'development Control Plan Flexibility']

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Procedural Posture

Class 1 Appeal Under S 97(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application Da/83/2014 / Mandatory Conciliation Under S 34 AA of the Land and Environment Court Act 1979 Did Not Resolve the Matter; Proceeded to Hearing and Final Orders

Legal Issues

  1. 1 ['Whether the proposed split-level dwelling on a sloping battle-axe block was permissible and appropriate despite non-compliance with Parramatta Development Control Plan 2011 controls for height, storeys and rear setback' "Whether the proposal adequately responded to the site's topography and minimised visual bulk, cut and fill, privacy impacts and amenity impacts on adjoining properties" "Whether private open space was adequate and sufficiently accessible from the dwelling's living areas" 'Whether design modifications and conditions could mitigate impacts sufficiently to permit approval']

Ratio Decidendi

The appeal was upheld because, although the proposal did not comply with some Parramatta Development Control Plan 2011 provisions for a battle-axe allotment, the dwelling complied with the Parramatta Local Environmental Plan 2011 height and FSR controls, was a permissible dwelling in the R2 zone, and in the site's particular sloping and constrained circumstances the split-level design was a reasonable alternative whose privacy, visual and open-space impacts could be reduced to an acceptable level by amended plans and conditions.

Court Disposition

Appeal upheld; development application determined by consent subject to annexed conditions and amended plans.

Orders

  • ['The appeal is upheld.' 'Development Application DA/83/2014 for tree removal and the construction of a split-level dwelling on Lot 3 DP112522, 54A Epping Avenue, Epping is determined by consent in accordance with the conditions annexured to this judgment.' 'The exhibits except A, B, C, D, E, F, J and 1 are returned.']