Lei Wu v Wingecarribee Shire Council [2016] NSWLEC 1536

Lei Wu v Wingecarribee Shire Council [2016] NSWLEC 1536

The appeal was dismissed because the amended proposal, although permissible in the R3 Medium Density Residential zone and capable of satisfying cl 7.3 of the Wingecarribee Local Environmental Plan 2010 in relation to earthworks, did not warrant variations to the DCP controls. The development's siting and form were not an acceptable alternative solution: it relied on excessive cut and fill, retaining walls, an internally focused gun barrel driveway, inadequate deep soil and mid-block planting, and produced unsatisfactory internal amenity including privacy and solar access outcomes. Minor redesign or an amber light approach could not rectify these deficiencies with sufficient specificity,...

Jurisdiction
Australia
Judgment Date
15 November 2016
Procedural Posture
Class 1 Development Appeal Under S 97(1)(a) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. Da/14/1328 / Principal Judgment After Mandatory Conciliation Was Terminated and Amended Plans Were Relied on
Outcome
Appeal dismissed; Development Application DA/14/1328 refused; applicant ordered to pay respondent's costs as agreed or assessed under s.97B of the Environmental Planning and Assessment Act NSW 1979.
Legal Topics
['medium Density Development' 'site Suitability and Urban Design' 'cut and Fill and Earthworks' 'private Open Space and Internal Amenity' 'privacy and Overlooking' 'landscaping and Mid Block Tree Canopy' 'development Control Plan Variations' 'costs of Amended Development Application']
['planning and Environment Law' 'development Consent' 'land and Environment Court Procedure'] ['medium Density Development' 'site Suitability and Urban Design' 'cut and Fill and Earthworks' 'private Open Space and Internal Amenity' 'privacy and Overlooking' 'landscaping and Mid Block Tree Canopy' 'development Control Plan Variations' 'costs of Amended Development Application']

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Procedural Posture

Class 1 Development Appeal Under S 97(1)(a) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. Da/14/1328 / Principal Judgment After Mandatory Conciliation Was Terminated and Amended Plans Were Relied on

Legal Issues

  1. 1 ['Whether the siting and site design of the proposed medium density development were appropriate having regard to topography, cut and fill, retaining walls, driveway form, landscaping and DCP controls.' 'Whether cl 7.3 of Wingecarribee Local Environmental Plan 2010 applied to the earthworks and whether its precondition to consent was satisfied.' 'Whether the internal amenity of the proposed development was satisfactory, including solar access, privacy, private open space and reliance on screening and upper level terraces.' 'Whether the impacts of the development on adjoining properties were acceptable.' 'Whether the proposal before the Court was sufficiently certain or capable of approval by an amber light approach.' "Whether the applicant should pay the respondent's costs thrown away under s 97B of the Environmental Planning and Assessment Act 1979."]

Ratio Decidendi

The appeal was dismissed because the amended proposal, although permissible in the R3 Medium Density Residential zone and capable of satisfying cl 7.3 of the Wingecarribee Local Environmental Plan 2010 in relation to earthworks, did not warrant variations to the DCP controls. The development's siting and form were not an acceptable alternative solution: it relied on excessive cut and fill, retaining walls, an internally focused gun barrel driveway, inadequate deep soil and mid-block planting, and produced unsatisfactory internal amenity including privacy and solar access outcomes. Minor redesign or an amber light approach could not rectify these deficiencies with sufficient specificity,...

Court Disposition

Appeal dismissed; Development Application DA/14/1328 refused; applicant ordered to pay respondent's costs as agreed or assessed under s.97B of the Environmental Planning and Assessment Act NSW 1979.

Orders

  • ['The appeal is dismissed.' 'Development application DA/14/1328 for the retention of the existing dwelling house and associated structures and the erection of 12 two storey dwellings removal of existing trees and vegetation and strata subdivision at 11 Clarke Street and 5 Cliff Street Bowral is refused for the...