McKerrell and Lloyd v Hornsby Shire Council [2005] NSWLEC 550

McKerrell and Lloyd v Hornsby Shire Council [2005] NSWLEC 550

The amended subdivision was acceptable because it satisfied the minimum subdivision and sloping-site area requirements, the driveway design complied with the Subdivision DCP and could be made acceptable by conditions addressing sight distance, fencing and surface treatment, the temporary loss of access during reconstruction did not justify refusal when balanced against the long-term benefits of upgrading the driveway, and Lots 101 and 103 were capable of accommodating dwellings within identified building envelopes and height constraints without unacceptable impact on private open space or residential character.

Jurisdiction
Australia
Judgment Date
06 October 2005
Procedural Posture
Appeal Against Refusal of Development Application / Judgment After Hearing
Outcome
Appeal upheld; development consent granted subject to conditions.
Legal Topics
['development Application' 'residential Subdivision' 'access Driveway' 'building Envelopes' 'private Open Space' 'residential Character' 'amenity Impacts' 'sight Distances' 'loss of Access During Construction']
['planning and Environment' 'development Control' 'subdivision'] ['development Application' 'residential Subdivision' 'access Driveway' 'building Envelopes' 'private Open Space' 'residential Character' 'amenity Impacts' 'sight Distances' 'loss of Access During Construction']

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Procedural Posture

Appeal Against Refusal of Development Application / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the proposed driveway was appropriate having regard to its design, access point with Belinda Crescent, amenity impacts on adjoining properties, and loss of access during reconstruction.' 'Whether proposed Lots 101 and 103 were suitable for the erection of dwellings having regard to building envelopes, private open space and the character of the area.' 'Whether the proposal satisfied the applicable planning controls, including Hornsby Shire Local Environmental Plan 1994 and the Residential Subdivision Development Control Plan.']

Ratio Decidendi

The amended subdivision was acceptable because it satisfied the minimum subdivision and sloping-site area requirements, the driveway design complied with the Subdivision DCP and could be made acceptable by conditions addressing sight distance, fencing and surface treatment, the temporary loss of access during reconstruction did not justify refusal when balanced against the long-term benefits of upgrading the driveway, and Lots 101 and 103 were capable of accommodating dwellings within identified building envelopes and height constraints without unacceptable impact on private open space or residential character.

Court Disposition

Appeal upheld; development consent granted subject to conditions.

Orders

  • ['The appeal is upheld.' 'Development Application No. 518/04 for the subdivision of three existing lots into five lots at 25, 37 and 39 Belinda Crescent, North Epping is approved subject to the conditions in Annexure A.' 'The exhibits are returned with the exception of exhibits 11, 12, B and C.']