Executive Products Pty Limited v Nambucca Shire Council & Ors [2008] NSWLEC 1523

Executive Products Pty Limited v Nambucca Shire Council & Ors [2008] NSWLEC 1523

Although the proposal exceeded the 5 m DCP height limit and affected views, that non-compliance did not mandate refusal. Applying the DCP flexibly and considering the Tenacity view sharing approach, the significant view impact was principally on 16 Matthew Street and did not affect views of Elephant Head, the cove, the ocean and foreshore to the south. Subject to a condition shortening the proposed extension by 1 m towards the west, the development represented an appropriate and reasonable sharing of views and warranted consent.

Jurisdiction
Australia
Judgment Date
14 October 2008
Procedural Posture
Development Application Appeal / Ex Tempore Judgment Following Hearing
Outcome
Appeal upheld and development consent granted subject to conditions.
Legal Topics
['development Application for Alterations and Additions to Dwelling House' 'view Loss and View Sharing' 'building Height Controls' 'development Control Plan Non Compliance' 'residential Amenity' 'precedent']
['planning and Environment Law'] ['development Application for Alterations and Additions to Dwelling House' 'view Loss and View Sharing' 'building Height Controls' 'development Control Plan Non Compliance' 'residential Amenity' 'precedent']

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Procedural Posture

Development Application Appeal / Ex Tempore Judgment Following Hearing

Legal Issues

  1. 1 ['Whether the proposed alterations and additions should be refused because they exceeded the 5 m height limit in Nambucca Development Control Plan 3 - Residential Development and affected views from adjoining and nearby properties.' 'Whether the proposal achieved reasonable view sharing, particularly for 16 Matthew Street, having regard to Tenacity Consulting v Warringah 2004 NSWLEC 140.' 'Whether approval would create an inappropriate precedent for nearby development.']

Ratio Decidendi

Although the proposal exceeded the 5 m DCP height limit and affected views, that non-compliance did not mandate refusal. Applying the DCP flexibly and considering the Tenacity view sharing approach, the significant view impact was principally on 16 Matthew Street and did not affect views of Elephant Head, the cove, the ocean and foreshore to the south. Subject to a condition shortening the proposed extension by 1 m towards the west, the development represented an appropriate and reasonable sharing of views and warranted consent.

Court Disposition

Appeal upheld and development consent granted subject to conditions.

Orders

  • ['Appeal upheld.' 'Development consent granted subject to the conditions proposed by the council together with the additional conditions proposed by the applicant in Exhibit D.' 'The proposed extension is to be shortened by 1 m towards the west.']