Iris Property Group Pty Ltd v Hunters Hill Council [2011] NSWLEC 1231

Iris Property Group Pty Ltd v Hunters Hill Council [2011] NSWLEC 1231

The appeal was dismissed because the proposal exceeded the 11m height standard and the applicant did not adequately demonstrate under cl 4.6 that compliance was unreasonable or unnecessary or that sufficient environmental planning grounds justified the contravention. Read together, the Village LEP and DCP 27 envisaged buildings up to three storeys on Gladesville Road, whereas the proposal would appear as a four storey building among single storey heritage cottages, would not be of a scale appropriate to the urban environment, would not create an attractive environment, and would adversely affect the heritage significance of adjoining heritage items and the conservation area.

Jurisdiction
Australia
Judgment Date
09 August 2011
Procedural Posture
Class 1 Appeal Against Deemed Refusal of a Development Application / Principal Judgment
Outcome
The appeal is dismissed and the development application is refused.
Legal Topics
['shop Top Housing' 'variation to Height Control' 'front Setback' 'car Park Access' 'solar Access' 'heritage Significance' 'development Control Plans']
['planning and Environment' 'development Consent' 'heritage Conservation'] ['shop Top Housing' 'variation to Height Control' 'front Setback' 'car Park Access' 'solar Access' 'heritage Significance' 'development Control Plans']

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Procedural Posture

Class 1 Appeal Against Deemed Refusal of a Development Application / Principal Judgment

Legal Issues

  1. 1 ['Whether the proposed four storey shop top housing development should be approved notwithstanding non-compliance with the 11m height standard in cl 4.3 of the Hunters Hill Local Environmental Plan (Hunters Hill Village) 2009.' "Whether the applicant's cl 4.6 request adequately justified contravention of the height development standard." 'Whether the proposed front setback was adequate under DCP 27 and in relation to the setting of adjoining heritage items.' 'Whether the proposal would adversely affect the heritage significance of adjoining heritage items and the Hunters Hill Village Heritage Conservation Area.' 'Whether non-compliance with the residential density control in DCP 21 warranted refusal.' 'Whether the proposed car park access was safe and adequate.' 'Whether the apartments and private open space achieved adequate solar access.']

Ratio Decidendi

The appeal was dismissed because the proposal exceeded the 11m height standard and the applicant did not adequately demonstrate under cl 4.6 that compliance was unreasonable or unnecessary or that sufficient environmental planning grounds justified the contravention. Read together, the Village LEP and DCP 27 envisaged buildings up to three storeys on Gladesville Road, whereas the proposal would appear as a four storey building among single storey heritage cottages, would not be of a scale appropriate to the urban environment, would not create an attractive environment, and would adversely affect the heritage significance of adjoining heritage items and the conservation area.

Court Disposition

The appeal is dismissed and the development application is refused.

Orders

  • ['The appeal is dismissed.' "The development application for 'shop top' housing at 58-60 Gladesville Road, Hunters Hill is refused." 'The exhibits may be returned.']