Proctor M & Anor v Marrickville Council [2007] NSWLEC 453

Proctor M & Anor v Marrickville Council [2007] NSWLEC 453

The proposal as submitted would have visually overbearing impacts on the rear yards of neighbours at Nos 4 and 8 Fishers Reserve. An additional 1m setback for both ground and first floors is necessary to reduce visual bulk and improve amenity consistent with MLEP and DCP35 objectives. The applicant not agreeing to amended setbacks results in refusal. Privacy screening is unnecessary if setback is provided, but since the applicant does not accept setbacks, the application is refused.

Jurisdiction
Australia
Judgment Date
17 July 2007
Procedural Posture
Development Appeal / Ex Tempore Judgment; De Novo Appeal
Outcome
Appeal dismissed; development application refused
Legal Topics
['development Applications' 'residential Alterations' 'setbacks' 'visual Impact' 'privacy' 'local Environmental Plans' 'development Control Plans']
['planning Law' 'environmental Law'] ['development Applications' 'residential Alterations' 'setbacks' 'visual Impact' 'privacy' 'local Environmental Plans' 'development Control Plans']

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Procedural Posture

Development Appeal / Ex Tempore Judgment; De Novo Appeal

Legal Issues

  1. 1 ['Whether deferred commencement Condition 1 (setback of first floor) should be deleted' 'Whether deferred commencement Condition 3 (privacy screening) should be deleted' 'Whether the proposed additions are visually overbearing on neighbouring properties' 'Whether the proposal unduly affects privacy of neighbouring properties']

Ratio Decidendi

The proposal as submitted would have visually overbearing impacts on the rear yards of neighbours at Nos 4 and 8 Fishers Reserve. An additional 1m setback for both ground and first floors is necessary to reduce visual bulk and improve amenity consistent with MLEP and DCP35 objectives. The applicant not agreeing to amended setbacks results in refusal. Privacy screening is unnecessary if setback is provided, but since the applicant does not accept setbacks, the application is refused.

Court Disposition

Appeal dismissed; development application refused

Orders

  • ['The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.' 'Development application No 200600133 lodged with the respondent council on 24 March 2006 to alter and add to an existing dwelling at Lot A, DP 315543, being No 6 Fishers Reserve, Petersham, is refused consent.' 'The...