Clarke v Inner West Council (No 2) [2020] NSWLEC 1372

Clarke v Inner West Council (No 2) [2020] NSWLEC 1372

The Court upheld the appeal because the planners' evidence supported approval, the revised shadow diagrams showed no unacceptable overshadowing from the proposed development, and the applicant's amended cl 4.6 written request adequately demonstrated that strict compliance with the landscaped area standard was unreasonable or unnecessary and that sufficient environmental planning grounds justified the variation. The proposed development was consistent with the objectives of cl 4.3A and the R1 General Residential zone, and the preconditions for varying the standard were satisfied.

Jurisdiction
Australia
Judgment Date
02 July 2020
Procedural Posture
Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Hearing Under S 34 C of the Land and Environment Court Act 1979; Principal Judgment
Outcome
Appeal upheld; development application approved subject to conditions.
Legal Topics
['development Application for Alterations and Additions' 'clause 4.6 Variation Request' 'landscaped Area Development Standard' 'overshadowing' 'conditions of Consent']
['planning and Environment' 'development Consent' 'local Environmental Planning'] ['development Application for Alterations and Additions' 'clause 4.6 Variation Request' 'landscaped Area Development Standard' 'overshadowing' 'conditions of Consent']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Hearing Under S 34 C of the Land and Environment Court Act 1979; Principal Judgment

Legal Issues

  1. 1 ['Whether Development Application DA/2019/489 for alterations and additions including a pergola and outdoor barbeque area should be approved subject to conditions.' 'Whether the clause 4.6 written request justified variation of the landscaped area development standard in cl 4.3A of the Leichhardt Local Environmental Plan 2013.' 'Whether the proposed development would generate unacceptable overshadowing of the adjoining property.' 'Whether a condition could be imposed limiting the height of the existing hedge along the common boundary.']

Ratio Decidendi

The Court upheld the appeal because the planners' evidence supported approval, the revised shadow diagrams showed no unacceptable overshadowing from the proposed development, and the applicant's amended cl 4.6 written request adequately demonstrated that strict compliance with the landscaped area standard was unreasonable or unnecessary and that sufficient environmental planning grounds justified the variation. The proposed development was consistent with the objectives of cl 4.3A and the R1 General Residential zone, and the preconditions for varying the standard were satisfied.

Court Disposition

Appeal upheld; development application approved subject to conditions.

Orders

  • ["The Applicant is granted leave to rely on the amended shadow plans prepared by Innovate Architecture ('Shadow Calculations - Existing Hedge Along Boundary & 5.5m Wide Hedge At 4m High' Drawing no. 11/C dated April 2020) and amended clause 4.6 variation statement prepared by Planning Ingenuity dated 18 May 2020 for...