Westwood v Waverly Council [2004] NSWLEC 574

Westwood v Waverly Council [2004] NSWLEC 574

The appeal was dismissed because, although the proposal had high design merit in abstract and several concerns such as FSR, privacy, parking and safety were not determinative, it failed to satisfy the second objective and detailed criteria of chapter 6 of the DCP concerning visual sympathy with the streetscape and integrity of semi-detached dwellings. The proposal would replace one dwelling in a semi-detached pair with a radically contrasting opaque glazed contemporary form, leaving only the shared boundary wall alignment as evidence of the pair, and would introduce significant discord in Wiley Street. The degree of departure from the DCP warranted refusal and design excellence was not...

Jurisdiction
Australia
Judgment Date
22 September 2004
Procedural Posture
Appeal Pursuant to S 97 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Ex Tempore Judgment Following on Site Hearing
Outcome
Appeal dismissed; development consent refused.
Legal Topics
['development Application Refusal' 'demolition of Semi Detached Dwelling and Construction of New House' 'development Control Plan Compliance' 'streetscape and Visual Impact' 'floor Space Ratio' 'building Height' 'privacy' 'off Street Parking' 'heritage Trees']
['environmental Planning and Assessment' 'development Consent' 'local Government'] ['development Application Refusal' 'demolition of Semi Detached Dwelling and Construction of New House' 'development Control Plan Compliance' 'streetscape and Visual Impact' 'floor Space Ratio' 'building Height' 'privacy' 'off Street Parking' 'heritage Trees']

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Procedural Posture

Appeal Pursuant to S 97 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Ex Tempore Judgment Following on Site Hearing

Legal Issues

  1. 1 ['Whether Development Application 750/2003 should be approved for demolition of an existing semi-detached dwelling and construction of a new house at 22 Wiley Street, Waverley.' "Whether the proposal's bulk and scale, including streetscape fit and impact when viewed from dwellings to the east, were acceptable." 'Whether the impact on neighbouring amenity was acceptable or could be made acceptable by minor modification.' 'Whether the proposal complied with relevant objectives, criteria and design solutions in Development Control Plan 2 – Dwelling-House Development, particularly chapter 6 on streetscape and visual impacts and semi-detached dwellings.']

Ratio Decidendi

The appeal was dismissed because, although the proposal had high design merit in abstract and several concerns such as FSR, privacy, parking and safety were not determinative, it failed to satisfy the second objective and detailed criteria of chapter 6 of the DCP concerning visual sympathy with the streetscape and integrity of semi-detached dwellings. The proposal would replace one dwelling in a semi-detached pair with a radically contrasting opaque glazed contemporary form, leaving only the shared boundary wall alignment as evidence of the pair, and would introduce significant discord in Wiley Street. The degree of departure from the DCP warranted refusal and design excellence was not...

Court Disposition

Appeal dismissed; development consent refused.

Orders

  • ['The appeal is dismissed.' 'Development Application 750/2003 for the demolition of an existing semidetached dwelling and the construction of a new house at 22 Wiley Street, Waverley is determined by the refusal of development consent.' 'The exhibits are returned.']