McCallum v Pittwater Council [2010] NSWLEC 1136

McCallum v Pittwater Council [2010] NSWLEC 1136

The Court upheld the appeal because, although the proposed deck did not numerically comply with the rear setback and site coverage controls in Pittwater 21 Development Control Plan, the site’s steep topography, existing built form and limited open space justified variation of those controls. A 2m rear setback, with an exception for the 1.8m pool cover area, together with landscaping, stormwater and engineering conditions, would satisfactorily achieve the DCP outcomes by reducing perceived bulk, providing usable private open space, avoiding unreasonable overlooking and addressing stormwater and retaining wall concerns.

Jurisdiction
Australia
Judgment Date
24 May 2010
Procedural Posture
Class 1 Appeal Pursuant to S 97(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Ex Tempore Judgment After Hearing
Outcome
Appeal upheld; development consent granted subject to conditions.
Legal Topics
['construction of Timber Deck' 'rear Boundary Setback' 'site Coverage' 'development Control Plan Variation' 'privacy and Overlooking' 'stormwater Runoff' 'geotechnical Stability and Retaining Wall']
['planning and Environment' 'development Consent'] ['construction of Timber Deck' 'rear Boundary Setback' 'site Coverage' 'development Control Plan Variation' 'privacy and Overlooking' 'stormwater Runoff' 'geotechnical Stability and Retaining Wall']

Case Brief

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Procedural Posture

Class 1 Appeal Pursuant to S 97(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Ex Tempore Judgment After Hearing

Legal Issues

  1. 1 ['Whether the Court had jurisdiction to determine the appeal as an appeal under s 97(1) of the Environmental Planning and Assessment Act 1979 for a new deck and use of existing piers as supports.' 'Whether non-compliance with the 6.5m rear setback control in clause D12.6 of Pittwater 21 Development Control Plan was acceptable.' 'Whether the proposed deck would result in unacceptable site coverage under clause D12.10 of Pittwater 21 Development Control Plan.' 'Whether privacy, overlooking, landscaping, stormwater runoff and retaining wall concerns could be adequately addressed by conditions.']

Ratio Decidendi

The Court upheld the appeal because, although the proposed deck did not numerically comply with the rear setback and site coverage controls in Pittwater 21 Development Control Plan, the site’s steep topography, existing built form and limited open space justified variation of those controls. A 2m rear setback, with an exception for the 1.8m pool cover area, together with landscaping, stormwater and engineering conditions, would satisfactorily achieve the DCP outcomes by reducing perceived bulk, providing usable private open space, avoiding unreasonable overlooking and addressing stormwater and retaining wall concerns.

Court Disposition

Appeal upheld; development consent granted subject to conditions.

Orders

  • ['The appeal is upheld.' 'Development consent to DA417/09 is granted subject to the conditions that are annexure A to this judgment.' 'The exhibits apart from exhibit 2 and exhibit 1(the plans) are returned to the parties.']