Irving v Lane Cove Council [2010] NSWLEC 1076

Irving v Lane Cove Council [2010] NSWLEC 1076

Applying the Tenacity view loss tests, the Court found the overall view loss from both affected properties was minor considering the totality of views retained. The proposed dwelling complied with relevant height, floor space ratio and setback controls and was substantially below the 9.5 m height requirement. The existing roof level was not the appropriate benchmark for new development, insufficient evidence supported the suggested lowering of the garage, and reducing floor-to-ceiling heights would undesirably affect amenity. Condition 1A(ii) was therefore not justified.

Jurisdiction
Australia
Judgment Date
09 March 2010
Procedural Posture
Appeal Under S 96 of the Environmental Planning and Assessment Act 1979 Against a Condition Imposed on Approval of DA 08/249 / Ex Tempore Judgment
Outcome
Appeal upheld; modification application approved by deletion of condition 1A(ii).
Legal Topics
['modification of Development Consent Condition' 'demolition of Existing Dwelling and Construction of New Dwelling' 'building Height' 'view Loss' 'planning Principle in Tenacity Consulting Pty Ltd V Warringah Council [2004] NSWLEC 140']
['environmental Planning and Assessment' 'development Consent'] ['modification of Development Consent Condition' 'demolition of Existing Dwelling and Construction of New Dwelling' 'building Height' 'view Loss' 'planning Principle in Tenacity Consulting Pty Ltd V Warringah Council [2004] NSWLEC 140']

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Procedural Posture

Appeal Under S 96 of the Environmental Planning and Assessment Act 1979 Against a Condition Imposed on Approval of DA 08/249 / Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether condition 1A(ii), requiring the proposed dwelling to be lowered by 0.5 m to RL 29.81, should remain because view loss suffered by existing dwellings would otherwise be unacceptable.']

Ratio Decidendi

Applying the Tenacity view loss tests, the Court found the overall view loss from both affected properties was minor considering the totality of views retained. The proposed dwelling complied with relevant height, floor space ratio and setback controls and was substantially below the 9.5 m height requirement. The existing roof level was not the appropriate benchmark for new development, insufficient evidence supported the suggested lowering of the garage, and reducing floor-to-ceiling heights would undesirably affect amenity. Condition 1A(ii) was therefore not justified.

Court Disposition

Appeal upheld; modification application approved by deletion of condition 1A(ii).

Orders

  • ['The appeal is upheld.' 'The application to modify the approval of DA 08/249 for the demolition of an existing dwelling and the construction of a new dwelling at 4 Church Street, Greenwich is approved by the deletion of condition 1A(ii).' 'The exhibits are returned with the exception of exhibit A.']