Commins v Leichhardt Council [2011] NSWLEC 1095

Commins v Leichhardt Council [2011] NSWLEC 1095

The proposed development's solar access impact on 100 Phillip Street was significant and it was not appropriate to depart from the modified DCP solar access guide for at least three hours solar access during the winter solstice unless the first floor extension was set back a further 700mm from the rear. That setback would give additional sunlight to the kitchen window and dining room door, achieve the DCP objective of minimising overshadowing of habitable rooms, leave any BLZ breach minimal and acceptable, and allow the SEPP 1 objection to the FSR standard to be upheld because the proposed development would then meet the objectives of the FSR development standard.

Jurisdiction
Australia
Judgment Date
28 April 2011
Procedural Posture
Appeal Under S97(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Consent / Conciliation Conference Under S34 AA of the Land and Environment Court Act 1979 Terminated; Hearing Held; Principal Judgment With Orders to Be Made in Chambers
Outcome
Subject to a further 700mm rear setback of the proposed first floor extension and amendment of the SEPP 1 objection to reflect the reduced FSR, the SEPP 1 objection can be upheld and the proposed development approved subject to conditions; orders to be made in chambers.
Legal Topics
['development Application for Alterations and Additions to Dwelling' 'sepp 1 Objection to Floor Space Ratio Development Standard' 'solar Access and Overshadowing' 'side Setbacks' 'building Location Zone' 'landscaped Area']
['planning and Environment Law' 'development Consent'] ['development Application for Alterations and Additions to Dwelling' 'sepp 1 Objection to Floor Space Ratio Development Standard' 'solar Access and Overshadowing' 'side Setbacks' 'building Location Zone' 'landscaped Area']

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Procedural Posture

Appeal Under S97(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Consent / Conciliation Conference Under S34 AA of the Land and Environment Court Act 1979 Terminated; Hearing Held; Principal Judgment With Orders to Be Made in Chambers

Legal Issues

  1. 1 ['Whether the impacts of the proposed development on solar access to 100 Phillip Street justified refusal or required modification' 'Whether the objection under State Environmental Planning Policy No 1 - Development Standards to the applicable floor space ratio development standard should be upheld' 'Whether variation from the side setback, Building Location Zone, and solar access controls in the Leichhardt Development Control Plan 2000 should be supported' 'Whether an additional rear setback to the proposed first floor extension would achieve acceptable solar access impacts']

Ratio Decidendi

The proposed development's solar access impact on 100 Phillip Street was significant and it was not appropriate to depart from the modified DCP solar access guide for at least three hours solar access during the winter solstice unless the first floor extension was set back a further 700mm from the rear. That setback would give additional sunlight to the kitchen window and dining room door, achieve the DCP objective of minimising overshadowing of habitable rooms, leave any BLZ breach minimal and acceptable, and allow the SEPP 1 objection to the FSR standard to be upheld because the proposed development would then meet the objectives of the FSR development standard.

Court Disposition

Subject to a further 700mm rear setback of the proposed first floor extension and amendment of the SEPP 1 objection to reflect the reduced FSR, the SEPP 1 objection can be upheld and the proposed development approved subject to conditions; orders to be made in chambers.

Orders

  • ['The applicant is to provide an amended SEPP 1 objection by 4 May 2011.' 'The parties are to provide amended conditions of consent by 4 May 2011, including a condition requiring amendment to the plans to incorporate an additional 700mm rear setback.' "The amended conditions are to include the agreed provision of a...