ES Engineering and Design v Bayside Council [2021] NSWLEC 1312

ES Engineering and Design v Bayside Council [2021] NSWLEC 1312

The development application was refused because the outbuilding, combining a secondary dwelling and garage across almost the entire width of the lot with reduced setbacks and an elevated slab and driveway, was an overdevelopment that was not responsive to the site's topography or local character, caused adverse visual privacy and visual amenity impacts, and did not satisfy the relevant R2 zone objective, Rockdale Development Control Plan controls, or the matters in s 4.15(1) of the Environmental Planning and Assessment Act 1979. The BIC appeal was upheld only in part because, although construction compliance information was sufficient for some works, the outbuilding and associated...

Jurisdiction
Australia
Judgment Date
01 June 2021
Procedural Posture
Class 1 Appeals Against Refusal of Development Application 2019/43 and Building Information Certificate Application 2018/49 / Final Determination After Hearing
Outcome
Development Application appeal dismissed and development consent refused; Building Information Certificate appeal upheld in part with Council directed to issue a BIC only for specified works excluding the new granny flat, garage and driveway beyond the permeable paving strips.
Legal Topics
['use of Unauthorised Works' 'secondary Dwelling and Garage' 'bulk and Scale' 'character and Context' 'visual Privacy' 'visual Amenity' 'landscaping']
['planning and Environment' 'development Applications' 'building Information Certificates'] ['use of Unauthorised Works' 'secondary Dwelling and Garage' 'bulk and Scale' 'character and Context' 'visual Privacy' 'visual Amenity' 'landscaping']

Case Brief

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Procedural Posture

Class 1 Appeals Against Refusal of Development Application 2019/43 and Building Information Certificate Application 2018/49 / Final Determination After Hearing

Legal Issues

  1. 1 ['Whether consent should be granted for use of unauthorised works comprising an outbuilding with secondary dwelling, garage and associated works on the site.' 'Whether the outbuilding was consistent with the R2 low density residential zone objectives, site context and character, and relevant development controls.' 'Whether the outbuilding caused adverse visual privacy or visual amenity impacts because of its elevation, setbacks, bulk and scale.' 'Whether the Court should direct Bayside Council to issue a Building Information Certificate for all or part of the works identified in the BIC application.']

Ratio Decidendi

The development application was refused because the outbuilding, combining a secondary dwelling and garage across almost the entire width of the lot with reduced setbacks and an elevated slab and driveway, was an overdevelopment that was not responsive to the site's topography or local character, caused adverse visual privacy and visual amenity impacts, and did not satisfy the relevant R2 zone objective, Rockdale Development Control Plan controls, or the matters in s 4.15(1) of the Environmental Planning and Assessment Act 1979. The BIC appeal was upheld only in part because, although construction compliance information was sufficient for some works, the outbuilding and associated...

Court Disposition

Development Application appeal dismissed and development consent refused; Building Information Certificate appeal upheld in part with Council directed to issue a BIC only for specified works excluding the new granny flat, garage and driveway beyond the permeable paving strips.

Orders

  • ['The applicant is granted leave to rely on Proposed Site Plan (Drawing Number 18159-03) by ES Engineering, dated 13 May 2021, Issue H.' 'The DA appeal is dismissed.' 'Development Application 2019/43, for use of the outbuilding with associated structures that was unlawfully commenced on Lot 2 DP 544171, also known...