Michael Suttor Architects Pty Limited v North Sydney Council [2006] NSWLEC 257

Michael Suttor Architects Pty Limited v North Sydney Council [2006] NSWLEC 257

The SEPP 1 objection to the landscaped area non-compliance should be sustained because strict compliance was unreasonable or unnecessary, but only subject to modifications. The view impacts from the public domain and 28 Kareela Road were acceptable, and the heritage and amenity impacts on 43 Kareela Road could be made acceptable by removing the side pathway, providing soft landscaping, retaining appropriate informal access, and increasing the setback by at least a further 300 mm from the proposed outer wall. On that basis the appeal was upheld and consent was to be granted subject to conditions and revised plans.

Jurisdiction
Australia
Judgment Date
29 March 2006
Procedural Posture
Appeal Pursuant to S97 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Ex Tempore Judgment After on Site Hearing
Outcome
Appeal upheld; development consent to be granted subject to conditions and revised plans.
Legal Topics
['development Application Appeal' 'consent Orders' 'impact on Neighbouring Heritage Item' 'landscaped Area Non Compliance' 'state Environmental Planning Policy No. 1 Objection']
['planning and Environment Law' 'development Consent' 'heritage Conservation'] ['development Application Appeal' 'consent Orders' 'impact on Neighbouring Heritage Item' 'landscaped Area Non Compliance' 'state Environmental Planning Policy No. 1 Objection']

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Procedural Posture

Appeal Pursuant to S97 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Ex Tempore Judgment After on Site Hearing

Legal Issues

  1. 1 ["Whether Development Application 115 of 2005 for a two-storey addition at 1/41 Kareela Road, Cremorne Point should be approved despite Council's refusal." 'Whether non-compliance with cl 23 of the North Sydney Local Environmental Plan 2001 concerning landscaped area should be permitted by sustaining the SEPP 1 objection.' 'Whether the proposed addition would have unacceptable impacts on the neighbouring heritage item at 43 Kareela Road.' 'Whether the proposed addition would have unacceptable view impacts from the public domain or 28 Kareela Road.' 'Whether further modification to the northern setback and landscaping was required.']

Ratio Decidendi

The SEPP 1 objection to the landscaped area non-compliance should be sustained because strict compliance was unreasonable or unnecessary, but only subject to modifications. The view impacts from the public domain and 28 Kareela Road were acceptable, and the heritage and amenity impacts on 43 Kareela Road could be made acceptable by removing the side pathway, providing soft landscaping, retaining appropriate informal access, and increasing the setback by at least a further 300 mm from the proposed outer wall. On that basis the appeal was upheld and consent was to be granted subject to conditions and revised plans.

Court Disposition

Appeal upheld; development consent to be granted subject to conditions and revised plans.

Orders

  • ['The appeal is upheld.' 'Development Application 115 of 2005 for ground floor and first floor alterations and additions to the existing dwelling and landscaping works at 1/41 Kereela Road, Cremorne Point, will be determined by the granting of development consent subject to conditions (which remain to be settled...