Gordon v Leichhardt Council [2007] NSWLEC 103

Gordon v Leichhardt Council [2007] NSWLEC 103

The amended proposal addressed the significant issues raised by the original plans and complied with the LEP floor space ratio and landscaped area standards, so no SEPP No. 1 objection was required. However, the balcony as shown would unreasonably affect the amenity, visual and aural privacy of No. 6 Bayside Street and extend beyond what should generally be regarded as the building location zone. Consent was therefore appropriate only with conditions reducing the balcony depth to a maximum of one metre, controlling privacy treatments, ensuring the rear studio remained ancillary and addressing drainage by deferred commencement conditions.

Jurisdiction
Australia
Judgment Date
02 March 2007
Procedural Posture
Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Judgment Determining the Appeal and Granting Deferred Commencement Consent Subject to Conditions
Outcome
Appeal upheld; amended development application granted deferred commencement consent subject to conditions.
Legal Topics
['alterations and Additions to Dwelling' 'rear Studio or Retreat' 'residential Amenity' 'privacy and Overlooking' 'bulk, Scale and Height' 'building Location Zone' 'floor Space Ratio' 'landscaped Area' 'drainage Easement']
['planning and Environment Law' 'development Consent'] ['alterations and Additions to Dwelling' 'rear Studio or Retreat' 'residential Amenity' 'privacy and Overlooking' 'bulk, Scale and Height' 'building Location Zone' 'floor Space Ratio' 'landscaped Area' 'drainage Easement']

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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 Determining the Appeal and Granting Deferred Commencement Consent Subject to Conditions

Legal Issues

  1. 1 ['Whether amended plans for alterations and additions to the existing dwelling and a rear retreat should be approved despite impacts on adjoining properties.' 'Whether the proposal complied with or acceptably varied planning controls including floor space ratio, landscaped area and the building location zone.' 'Whether the proposed balcony would unreasonably affect the visual and aural privacy and amenity of No. 6 Bayside Street and other adjoining properties.' 'Whether the rear studio was satisfactory if conditioned so that it remained ancillary to the dwelling and was not used for dual occupancy.' 'Whether drainage easement issues should be addressed by deferred commencement conditions and any later application under s 40 of the Land and Environment Court Act.']

Ratio Decidendi

The amended proposal addressed the significant issues raised by the original plans and complied with the LEP floor space ratio and landscaped area standards, so no SEPP No. 1 objection was required. However, the balcony as shown would unreasonably affect the amenity, visual and aural privacy of No. 6 Bayside Street and extend beyond what should generally be regarded as the building location zone. Consent was therefore appropriate only with conditions reducing the balcony depth to a maximum of one metre, controlling privacy treatments, ensuring the rear studio remained ancillary and addressing drainage by deferred commencement conditions.

Court Disposition

Appeal upheld; amended development application granted deferred commencement consent subject to conditions.

Orders

  • ['The appeal in respect of the property known No. 18 Frazer Street, Lilyfield is upheld.' "The development application submitted to Leichhardt Council and as amended is determined by the granting of a deferred commencement consent and subject to the conditions contained in Annexure 'A'." 'The exhibits with exception...