Ellis v Lane Cove Council [2020] NSWLEC 1190

Ellis v Lane Cove Council [2020] NSWLEC 1190

The appeal was dismissed because the proposed basement garage required excavation well in excess of the 1m cut and fill control on a site that was not steeply sloping, was not demonstrated to be necessary, did not relate to the site's topography, and failed to satisfy cl 4.3(1)(d) of the Lane Cove Local Environmental Plan 2009 and cl 1.6 of the Lane Cove Development Control Plan 2010. The basement garage and ramped driveway were also inconsistent with the existing and emerging streetscape character, did not satisfy relevant R2 zone and development control plan objectives, and the proposal was therefore not in the public interest under s 4.15(1)(e) of the Environmental Planning and...

Jurisdiction
Australia
Judgment Date
23 April 2020
Procedural Posture
Class 1 Development Appeal Against Refusal of Development Application (da) 188/2018 / Hearing of Appeal Held Forthwith After Termination of Conciliation Under S 34 Aa(2)(b)(i) of the Land and Environment Court Act 1979
Outcome
Appeal dismissed; Development Application (DA) 188/2018 refused.
Legal Topics
['development Application Refusal' 'residential Dwelling Development' 'excavation and Basement Garaging' 'streetscape and Neighbourhood Character' 'development Control Plan Compliance' 'public Interest']
['planning and Environment Law'] ['development Application Refusal' 'residential Dwelling Development' 'excavation and Basement Garaging' 'streetscape and Neighbourhood Character' 'development Control Plan Compliance' 'public Interest']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 1 Development Appeal Against Refusal of Development Application (da) 188/2018 / Hearing of Appeal Held Forthwith After Termination of Conciliation Under S 34 Aa(2)(b)(i) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether the proposed depth of excavation for the basement garage was reasonable and responsive to the topography of the site.' 'Whether the proposed basement garage and ramped driveway were consistent with the existing and emerging character of the area and streetscape.' 'Whether consent should be granted having regard to the Environmental Planning and Assessment Act 1979, Lane Cove Local Environmental Plan 2009 and Lane Cove Development Control Plan 2010.']

Ratio Decidendi

The appeal was dismissed because the proposed basement garage required excavation well in excess of the 1m cut and fill control on a site that was not steeply sloping, was not demonstrated to be necessary, did not relate to the site's topography, and failed to satisfy cl 4.3(1)(d) of the Lane Cove Local Environmental Plan 2009 and cl 1.6 of the Lane Cove Development Control Plan 2010. The basement garage and ramped driveway were also inconsistent with the existing and emerging streetscape character, did not satisfy relevant R2 zone and development control plan objectives, and the proposal was therefore not in the public interest under s 4.15(1)(e) of the Environmental Planning and...

Court Disposition

Appeal dismissed; Development Application (DA) 188/2018 refused.

Orders

  • ['Leave is granted to rely on amended plans revision set 2A, dated 31 March 2020.' 'The appeal is dismissed.' 'Development Application (DA) 188/2018 which relates to demolition of existing structures and construction of a two storey dwelling with basement garaging on Lot 18 DP 9653, also known as 60 Centennial...