Sheree Waks and Borivoj Maksimovic v Marrickville Council [2003] NSWLEC 305

Sheree Waks and Borivoj Maksimovic v Marrickville Council [2003] NSWLEC 305

The proposal did not merit consent because the small and differently shaped subdivision was inconsistent with the prevailing subdivision and building pattern, resulted in dwellings too close to boundaries, inadequate and poorly solar-accessed private open space, unacceptable overshadowing and privacy impacts, and non-compliant setbacks; cumulatively these matters amounted to overdevelopment contrary to the aims and objectives of DCP 35 to minimise impacts on surrounding properties and streetscape.

Jurisdiction
Australia
Judgment Date
25 September 2003
Procedural Posture
Appeal Against Refusal of Development Application / Judgment After Hearing
Outcome
Appeal dismissed; development application refused.
Legal Topics
['development Application Refusal' 'two Lot Subdivision' 'demolition and Construction of Dwellings' 'subdivision Pattern' 'private Open Space' 'solar Access and Overshadowing' 'privacy Impacts' 'building Setbacks' 'overdevelopment']
['planning and Environment' 'development Consent' 'land Use Planning'] ['development Application Refusal' 'two Lot Subdivision' 'demolition and Construction of Dwellings' 'subdivision Pattern' 'private Open Space' 'solar Access and Overshadowing' 'privacy Impacts' 'building Setbacks' 'overdevelopment']

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

Appeal Against Refusal of Development Application / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the proposed two-lot subdivision and construction of two two-storey dwellings should be granted development consent.' 'Whether the proposal was consistent with the prevailing subdivision and building pattern required by DCP 35.' 'Whether the proposal provided adequate private open space with acceptable utility and solar access.' 'Whether the proposal caused unacceptable overshadowing to adjoining properties.' 'Whether privacy impacts from first floor terraces were acceptable.' 'Whether proposed setbacks complied sufficiently with DCP 35 and avoided unacceptable visual impacts.']

Ratio Decidendi

The proposal did not merit consent because the small and differently shaped subdivision was inconsistent with the prevailing subdivision and building pattern, resulted in dwellings too close to boundaries, inadequate and poorly solar-accessed private open space, unacceptable overshadowing and privacy impacts, and non-compliant setbacks; cumulatively these matters amounted to overdevelopment contrary to the aims and objectives of DCP 35 to minimise impacts on surrounding properties and streetscape.

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed.' 'Development Application 2002/00639 for a 2-lot subdivision and erection of 2 x 2 storey houses at 39 Myra Road, Dulwich Hill, is refused.' 'The exhibits may be returned except for exhibits 2, 3, 9 and A.']