Hoggett v Willoughby Municipal Council [1988] NSWLEC 149

Hoggett v Willoughby Municipal Council [1988] NSWLEC 149

Assessed on the basis requested by both parties, namely that the proposed subdivision would enable construction of the proposed ramp and house on lot 23, development consent should be refused because the ramp and house would be obtrusive and visible from the waterway, the house would cross the foreshore building line, the overall proposal would greatly exceed the Development Control Plan floor space ratio, the ramp would exceed relevant height controls and may pose safety problems, and refusal would not sterilise the land because it was already subdivided and capable of residential development with existing access.

Jurisdiction
Australia
Judgment Date
01 December 1988
Procedural Posture
Appeal Against Refusal of Development Consent for Subdivision, Application for Declarations, and Appeal Against Deemed Refusal of Subdivision Approval Under Part XII of the Local Government Act / Judgment After Hearing
Outcome
Appeal dismissed, development application refused, related application and appeal dismissed, and no order as to costs.
Legal Topics
['development Consent for Subdivision' 'foreshore Building Line' 'servient Tenement Owner Consent' 'urban Bushland' 'amenity and Visual Impact' 'costs']
['planning and Environment' 'local Government' 'land Use and Subdivision'] ['development Consent for Subdivision' 'foreshore Building Line' 'servient Tenement Owner Consent' 'urban Bushland' 'amenity and Visual Impact' 'costs']

Case Brief

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Procedural Posture

Appeal Against Refusal of Development Consent for Subdivision, Application for Declarations, and Appeal Against Deemed Refusal of Subdivision Approval Under Part XII of the Local Government Act / Judgment After Hearing

Legal Issues

  1. 1 ['Whether development consent should be granted for the proposed three-lot subdivision of 37 - 39 The Scarp, Castlecrag, assessed on the basis that a proposed ramp and house on lot 23 would be constructed.' "Whether the absence of consent from one owner of servient land affected the Court's power to grant development consent having regard to s.77 of the Environmental Planning and Assessment Act." 'Whether the Court should have regard to the foreshore building line despite the map not showing a broken red line in the form referred to in cl.20(6).' 'Whether SEPP No.19 concerning preservation of bushland within urban areas was significant to assessment of the proposal.' "Whether exceptional circumstances justified an order that Mr. Hoggett pay the Council's costs."]

Ratio Decidendi

Assessed on the basis requested by both parties, namely that the proposed subdivision would enable construction of the proposed ramp and house on lot 23, development consent should be refused because the ramp and house would be obtrusive and visible from the waterway, the house would cross the foreshore building line, the overall proposal would greatly exceed the Development Control Plan floor space ratio, the ramp would exceed relevant height controls and may pose safety problems, and refusal would not sterilise the land because it was already subdivided and capable of residential development with existing access.

Court Disposition

Appeal dismissed, development application refused, related application and appeal dismissed, and no order as to costs.

Orders

  • ['The appeal in matter No. 10298/87 is dismissed and the development application is refused.' 'Application No. 40130/88 is dismissed.' 'Appeal No. 10264/88 is dismissed.' 'No order as to costs in any of the three proceedings.']