Hickey v Newcastle City Council [2016] NSWLEC 1060

Hickey v Newcastle City Council [2016] NSWLEC 1060

The proposed development was unreasonable because the benefit to Unit A101 from enclosing the balcony in poor weather did not outweigh the significant view loss to Unit 302 of near and distant ocean views, the water/land interface, the rock platform and the Newcastle Ocean Baths pavilion, even though the view was from a bedroom. The proposal was also inconsistent with pt 7.01.09 of DCP 2012. In addition, development consent could not be granted because the proposal exceeded the 1.5:1 floor space ratio standard and the evidence did not constitute a written request satisfying cl 4.6 of LEP 2012. The appeal was therefore dismissed and the development application refused.

Jurisdiction
Australia
Judgment Date
19 February 2016
Procedural Posture
Class 1 Appeal Against Refusal of Development Application 2014/1481 / Conciliation Conference Under S 34 of the Land and Environment Court Act 1979 Terminated With No Agreement; Parties Consented to Disposal Forthwith Pursuant to S 34(4)(b)(i) and on the Basis of What Occurred at the Conciliation Conference Pursuant to S 34(4)(b)(ii)
Outcome
Appeal dismissed; Development Application 2014/1481 refused.
Legal Topics
['development Application Refusal' 'view Loss and View Sharing' 'floor Space Ratio Development Standard' 'clause 4.6 Exception to Development Standards' 'residential Apartment Development']
['planning and Environment Law' 'development Consent'] ['development Application Refusal' 'view Loss and View Sharing' 'floor Space Ratio Development Standard' 'clause 4.6 Exception to Development Standards' 'residential Apartment Development']

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Procedural Posture

Class 1 Appeal Against Refusal of Development Application 2014/1481 / Conciliation Conference Under S 34 of the Land and Environment Court Act 1979 Terminated With No Agreement; Parties Consented to Disposal Forthwith Pursuant to S 34(4)(b)(i) and on the Basis of What Occurred at the Conciliation Conference Pursuant to S 34(4)(b)(ii)

Legal Issues

  1. 1 ['Whether the proposed enclosure of an existing first floor balcony would cause unacceptable view loss to neighbouring apartments, particularly Unit 302 in the Scott Street building.' 'Whether the breach of the floor space ratio development standard was justified under cl 4.6 of Newcastle Local Environmental Plan 2012.' 'Whether the development application should be refused.']

Ratio Decidendi

The proposed development was unreasonable because the benefit to Unit A101 from enclosing the balcony in poor weather did not outweigh the significant view loss to Unit 302 of near and distant ocean views, the water/land interface, the rock platform and the Newcastle Ocean Baths pavilion, even though the view was from a bedroom. The proposal was also inconsistent with pt 7.01.09 of DCP 2012. In addition, development consent could not be granted because the proposal exceeded the 1.5:1 floor space ratio standard and the evidence did not constitute a written request satisfying cl 4.6 of LEP 2012. The appeal was therefore dismissed and the development application refused.

Court Disposition

Appeal dismissed; Development Application 2014/1481 refused.

Orders

  • ['The appeal is dismissed.' 'Development Application 2014/1481 for the construction of a roof and windows to enclose an existing first floor balcony at Unit A101/1 Moroney Avenue, Newcastle East is refused.' 'The exhibits are returned with the exception of exhibits 1 and B.']