Stralow D & Anor v North Sydney [2004] NSWLEC 124

Stralow D & Anor v North Sydney [2004] NSWLEC 124

The appeal was upheld because the Court accepted the Applicant's SEPP No. 1 objections for the building height plane and landscaped area, found that no setback SEPP No. 1 objection was needed or alternatively that compliance was unreasonable and unnecessary, accepted the joint engineering evidence as resolving structural stability concerns, and was satisfied that the conditioned two-car garage would not compromise the streetscape, building form, landscaped area, neighbourhood character or heritage significance of No. 8 Baden Road.

Jurisdiction
Australia
Judgment Date
24 March 2004
Procedural Posture
Class 1 Appeal Concerning Refusal of a Development Application for a Two Car Garage / Final Judgment After Hearing
Outcome
Appeal upheld; deferred commencement consent granted for a two-car garage at No. 8 Baden Road, Kurraba Point, North Sydney, subject to conditions.
Legal Topics
['development Application Refusal' 'building Height Plane' 'building Setback' 'landscaped Area' 'sepp No. 1 Objection' 'heritage Item' 'streetscape Impact' 'deferred Commencement Consent']
['planning and Environment' 'development Control' 'heritage Conservation'] ['development Application Refusal' 'building Height Plane' 'building Setback' 'landscaped Area' 'sepp No. 1 Objection' 'heritage Item' 'streetscape Impact' 'deferred Commencement Consent']

Case Brief

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Procedural Posture

Class 1 Appeal Concerning Refusal of a Development Application for a Two Car Garage / Final Judgment After Hearing

Legal Issues

  1. 1 ['Whether the proposed development should be approved despite breach of the building height plane provisions of cl 18 of the North Sydney Local Environment Plan 2001.' "Whether the Applicant's State Environmental Planning Policy No.1 objection to the building height plane breach should be upheld." 'Whether the proposed development should be approved despite alleged breach of the building setback provisions of cl 19 of the North Sydney Local Environment Plan 2001.' 'Whether a SEPP No. 1 objection was required or should be upheld for the building setback issue.' 'Whether the proposed development should be approved despite breach of the landscape area provisions of cl 20 of the North Sydney Local Environment Plan 2001 and the related North Sydney Development Control Plan 2002 controls.' 'Whether the proposed garage would adversely affect the heritage item, including the heritage-listed house and front sandstone wall.' "Whether a structural engineer's report was required under cl 48(7)(b) of the North Sydney Local Environment Plan 2001 and whether excavation stability concerns were resolved." 'Whether the proposal was inconsistent with the South Cremorne Planning Area Character Statement and built form requirements of the North Sydney Development Control Plan 2002.']

Ratio Decidendi

The appeal was upheld because the Court accepted the Applicant's SEPP No. 1 objections for the building height plane and landscaped area, found that no setback SEPP No. 1 objection was needed or alternatively that compliance was unreasonable and unnecessary, accepted the joint engineering evidence as resolving structural stability concerns, and was satisfied that the conditioned two-car garage would not compromise the streetscape, building form, landscaped area, neighbourhood character or heritage significance of No. 8 Baden Road.

Court Disposition

Appeal upheld; deferred commencement consent granted for a two-car garage at No. 8 Baden Road, Kurraba Point, North Sydney, subject to conditions.

Orders

  • ['The appeal is upheld.' 'Deferred commencement consent is given for a two car garage at No. 8 Baden Road, Kurraba Point, North Sydney as shown in the drawings by Albion Architects and Builders in drawings, DA01B, DA02B, DA03C, DA04C, DA05C, DA06B and landscape plan by Botancia drawing LPO1/B Job No. 040201, all in...