International Development & Construction Pty Ltd v North Sydney Council [2005] NSWLEC 691

International Development & Construction Pty Ltd v North Sydney Council [2005] NSWLEC 691

The application failed because the proposed breach of the building height plane would cause material loss of solar access to north-facing bay windows of units in the adjoining heritage building, so consent to the SEPP 1 objection could not be granted under cl 18(5). Independently, the extent of non-compliance with the building height plane, height and landscape controls did not achieve the objectives of those controls, caused unreasonable view loss, inadequate building separation and insufficient landscape buffering, and was not justified by the site context.

Jurisdiction
Australia
Judgment Date
14 November 2005
Procedural Posture
Appeal Against Deemed Refusal of a Development Application / Ex Tempore Judgment
Outcome
Appeal dismissed; development application refused.
Legal Topics
['apartment Building Development Application' 'sepp 1 Objection to Development Standards' 'building Height' 'building Height Plane' 'landscape Area' 'solar Access and Overshadowing' 'view Loss' 'heritage Curtilage']
['planning and Environment Law' 'development Consent' 'heritage Conservation'] ['apartment Building Development Application' 'sepp 1 Objection to Development Standards' 'building Height' 'building Height Plane' 'landscape Area' 'solar Access and Overshadowing' 'view Loss' 'heritage Curtilage']

Case Brief

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Procedural Posture

Appeal Against Deemed Refusal of a Development Application / Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the proposed height, bulk, scale and landscaping were compatible with the existing and desired future character of the area.' 'Whether the SEPP 1 objections to the building height, building height plane and landscape area controls were well founded.' 'Whether the proposal would materially overshadow or obstruct views from adjoining property within the meaning of cl 18(5) of North Sydney Local Environmental Plan 2001.' 'Whether the proposal would adversely affect the adjoining heritage item at 26 East Crescent Street.']

Ratio Decidendi

The application failed because the proposed breach of the building height plane would cause material loss of solar access to north-facing bay windows of units in the adjoining heritage building, so consent to the SEPP 1 objection could not be granted under cl 18(5). Independently, the extent of non-compliance with the building height plane, height and landscape controls did not achieve the objectives of those controls, caused unreasonable view loss, inadequate building separation and insufficient landscape buffering, and was not justified by the site context.

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed.' 'The development application for an apartment building, with 11 units and basement parking for 20 cars, at 28 East Crescent Street, is refused.' 'The exhibits may be returned.' 'No order as to costs.']