Quinn O'Hanlon Architects Pty Ltd v Leichhardt Municipal Council [1989] NSWLEC 183

Quinn O'Hanlon Architects Pty Ltd v Leichhardt Municipal Council [1989] NSWLEC 183

Clause 22 of Leichhardt Local Environmental Plan No 20 was, in the circumstances, a development standard concerning the siting of a permissible building, so the assessor erred in holding that SEPP No 1 did not apply as a matter of law. However, the appeal was dismissed because the assessor had independently and exhaustively determined that consent should be refused on planning merit grounds, including loss of amenity, overlooking, loss of privacy, restricted water views, overshadowing, bulk, and inappropriate design and external appearance; the legal errors concerning SEPP No 1 did not affect that planning decision.

Jurisdiction
Australia
Judgment Date
01 May 1989
Procedural Posture
Appeal Pursuant to S 56 a of the Land and Environment Court Act Against an Assessor's Decision Dismissing a Development Application Appeal / Judgment on Appeal
Outcome
Appeal dismissed; costs reserved.
Legal Topics
['foreshore Building Line' 'development Standards' 'state Environmental Planning Policy No 1 Objections' 'planning Merits' 'amenity and Aesthetics']
['planning and Environment Law' 'development Consent' 'land Use'] ['foreshore Building Line' 'development Standards' 'state Environmental Planning Policy No 1 Objections' 'planning Merits' 'amenity and Aesthetics']

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Procedural Posture

Appeal Pursuant to S 56 a of the Land and Environment Court Act Against an Assessor's Decision Dismissing a Development Application Appeal / Judgment on Appeal

Legal Issues

  1. 1 ['Whether cl 22 of Leichhardt Local Environmental Plan No 20 was a development standard within the meaning of s 4 of the Environmental Planning and Assessment Act.' 'Whether State Environmental Planning Policy No 1 could be used to dispense with compliance with cl 22.' 'Whether the assessor applied the wrong test by treating compliance as needing to be unreasonable and unnecessary, rather than unreasonable or unnecessary, and by requiring proof that development could not otherwise be constructed in conformity with the planning instrument.' 'Whether the appeal should nevertheless be dismissed because the assessor independently refused the application on planning merit grounds.']

Ratio Decidendi

Clause 22 of Leichhardt Local Environmental Plan No 20 was, in the circumstances, a development standard concerning the siting of a permissible building, so the assessor erred in holding that SEPP No 1 did not apply as a matter of law. However, the appeal was dismissed because the assessor had independently and exhaustively determined that consent should be refused on planning merit grounds, including loss of amenity, overlooking, loss of privacy, restricted water views, overshadowing, bulk, and inappropriate design and external appearance; the legal errors concerning SEPP No 1 did not affect that planning decision.

Court Disposition

Appeal dismissed; costs reserved.

Orders

  • ['The appeal is dismissed.' 'Costs reserved.']