Gus Fares v Leichhardt Council [2003] NSWLEC 325

Gus Fares v Leichhardt Council [2003] NSWLEC 325

Although the proposal complied with many numerical residential controls, the two proposed new two-storey detached dwellings would be located outside the Building Location Zone. The applicant did not discharge the onus of justifying that breach. The development would reduce the established open, vegetated rear-yard pattern, be visible from adjoining rear yards and the street, diminish neighbourhood character, and have adverse streetscape and landscape impacts. Consent was therefore refused and the appeal dismissed.

Jurisdiction
Australia
Judgment Date
03 December 2003
Procedural Posture
Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Judgment After Hearing
Outcome
Appeal dismissed; development application refused consent.
Legal Topics
['building Location Zone' 'streetscape Impact' 'private Open Space and Landscaping' 'residential Amenity' 'floor Space Ratio' 'strata Subdivision']
['planning and Environment' 'development Consent' 'land Use and Subdivision'] ['building Location Zone' 'streetscape Impact' 'private Open Space and Landscaping' 'residential Amenity' 'floor Space Ratio' 'strata Subdivision']

Case Brief

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Procedural Posture

Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the proposed development would be appropriate in the streetscape.' 'Whether the rear portion of the subject land should be landscaped so as to maintain the vegetated strip in the rear yards of nearby and adjoining properties.' "Whether the proposed development's breach of the Building Location Zone under Leichhardt Development Control Plan 2000 was justified." 'Whether the proposal was consistent with relevant objectives and controls in Leichhardt Local Environmental Plan 2000 and Leichhardt Development Control Plan 2000.']

Ratio Decidendi

Although the proposal complied with many numerical residential controls, the two proposed new two-storey detached dwellings would be located outside the Building Location Zone. The applicant did not discharge the onus of justifying that breach. The development would reduce the established open, vegetated rear-yard pattern, be visible from adjoining rear yards and the street, diminish neighbourhood character, and have adverse streetscape and landscape impacts. Consent was therefore refused and the appeal dismissed.

Court Disposition

Appeal dismissed; development application refused consent.

Orders

  • ['The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.' 'Development application No D/2002/321 lodged with the respondent council on 12 May 2002 to alter and add to an existing dwelling, to erect two new detached dwellings and to strata subdivide (originally under Torrens title)...