Mc Fadyen v Kogarah Council [2007] NSWLEC 8

Mc Fadyen v Kogarah Council [2007] NSWLEC 8

The proposal complied with the relevant State Environmental Planning Policy Seniors Living standards, including a floor space ratio below 1:1 and height below 8 metres. The council's objections to form and character were, in substance, objections to density and scale, and cl 79 prevented refusal on those grounds....

Source-derived case information.

Jurisdiction
Australia
Judgment Date
10 January 2007
Procedural Posture
Development Application Appeal / Appeal Against Deemed Refusal by Kogarah Council
Outcome
Appeal upheld; development consent granted subject to conditions in Annexure A.
Legal Topics
['development Consent' 'residential Care Facility' 'state Environmental Planning Policy Seniors Living' 'compatibility of Form and Character' 'overshadowing' 'visual Bulk' 'overlooking' 'internal Amenity']
['planning and Environment Law'] ['development Consent' 'residential Care Facility' 'state Environmental Planning Policy Seniors Living' 'compatibility of Form and Character' 'overshadowing' 'visual Bulk' 'overlooking' 'internal Amenity']

Source-derived case record

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Procedural Posture

Development Application Appeal / Appeal Against Deemed Refusal by Kogarah Council

Legal Issues

  1. 1 ['Whether the form and character of the proposal is compatible with its surroundings.' 'Whether the impact, including overshadowing, visual bulk and overlooking, on neighbouring properties is acceptable.' 'Whether the internal amenity of the bedrooms is acceptable.']

Ratio Decidendi

The proposal complied with the relevant State Environmental Planning Policy Seniors Living standards, including a floor space ratio below 1:1 and height below 8 metres. The council's objections to form and character were, in substance, objections to density and scale, and cl 79 prevented refusal on those grounds. The impacts on neighbours and criticisms of internal amenity did not justify refusal. The Court therefore upheld the appeal and granted consent subject to conditions.

Court Disposition

Appeal upheld; development consent granted subject to conditions in Annexure A.

Orders

  • ['The appeal is upheld.' 'Development application to demolish the existing buildings and erect a two-storey residential care facility containing 64 beds over basement parking on lots 1 and 2 DP 7754, known as 220-202 West Street, Carlton is determined by the grant of consent subject to the conditions in Annexure A.'...