Shepherd & Rowe v Lane Cove Council [2004] NSWLEC 691

Shepherd & Rowe v Lane Cove Council [2004] NSWLEC 691

The proposal acceptably addressed the objectives of the floor space ratio and height controls because, having regard to the site inspection, the dwelling sat within a sandstone cut, appeared generally as a single-storey building from the upper level, was not noticeably different from other buildings in the steeply sloping area, and did not cause unacceptable privacy or amenity impacts to adjoining land. The open landscaped undercroft and the unusual site circumstances warranted variation to the floor space ratio control under cl 4(e) of the Code. On the applicant's estimated natural ground level, and having regard to cl 4(e), the height was acceptable. The applicant's amended plans...

Jurisdiction
Australia
Judgment Date
10 February 2004
Procedural Posture
Appeal Against Refusal of Development Application / On Site Hearing and Judgment
Outcome
Appeal upheld; development application approved subject to conditions.
Legal Topics
['development Application for Dwelling House' 'floor Space Ratio' 'height Controls' 'bulk and Scale' 'tree Retention' 'deferred Commencement Condition']
['environmental Planning and Assessment' 'development Control'] ['development Application for Dwelling House' 'floor Space Ratio' 'height Controls' 'bulk and Scale' 'tree Retention' 'deferred Commencement Condition']

Case Brief

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Procedural Posture

Appeal Against Refusal of Development Application / On Site Hearing and Judgment

Legal Issues

  1. 1 ['Whether the proposed development is an overdevelopment and has an unacceptable impact on adjoining properties and the character of the area.' 'Whether the proposed dwelling unacceptably impacts on existing Blackbutt trees.' 'Whether breaches of the height and floor space ratio requirements in the Code were acceptable.' 'Whether the amended dwelling design to retain the trees should be dealt with by deferred commencement condition or general condition.']

Ratio Decidendi

The proposal acceptably addressed the objectives of the floor space ratio and height controls because, having regard to the site inspection, the dwelling sat within a sandstone cut, appeared generally as a single-storey building from the upper level, was not noticeably different from other buildings in the steeply sloping area, and did not cause unacceptable privacy or amenity impacts to adjoining land. The open landscaped undercroft and the unusual site circumstances warranted variation to the floor space ratio control under cl 4(e) of the Code. On the applicant's estimated natural ground level, and having regard to cl 4(e), the height was acceptable. The applicant's amended plans...

Court Disposition

Appeal upheld; development application approved subject to conditions.

Orders

  • ['The appeal is upheld.' 'Development Application D419/01 for the erection of a dwelling at 24 Fleming Street, Lane Cove is approved subject to the conditions in Annexure A.']