Kenny v City of Ryde Council [2007] NSWLEC 338

Kenny v City of Ryde Council [2007] NSWLEC 338

Conditional consent was warranted because, although the proposed FSR exceeded the DCP control due to basement floor space, the proposal complied with the building envelope and height controls, the additional basement floor space was largely indiscernible, it enabled desirable ESD components, it did not create adverse neighbour amenity or streetscape impacts, and the objectives of the bulk and scale design elements were satisfied.

Jurisdiction
Australia
Judgment Date
04 June 2007
Procedural Posture
Appeal Against Council's Refusal of a Development Application / Ex Tempore Judgment After on Site Hearing
Outcome
Appeal allowed; development consent granted subject to conditions.
Legal Topics
['development Application' 'residential Dwelling' 'floor Space Ratio' 'bulk and Scale' 'basement Excavation' 'environmentally Sustainable Development Components' 'neighbourhood Amenity' 'residential Character']
['environmental and Planning Law'] ['development Application' 'residential Dwelling' 'floor Space Ratio' 'bulk and Scale' 'basement Excavation' 'environmentally Sustainable Development Components' 'neighbourhood Amenity' 'residential Character']

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Procedural Posture

Appeal Against Council's Refusal of a Development Application / Ex Tempore Judgment After on Site Hearing

Legal Issues

  1. 1 ['Whether consent should be granted for demolition of an existing dwelling and construction of a 2 storey dwelling over basement at 14 Teemer Street, Tennyson Point.' 'Whether the proposed floor space ratio of about 0.71:1 should be allowed despite the Consolidated Development Control Plan maximum FSR of 0.5:1.' 'Whether the basement excavation and additional basement floor space for parking and ESD components created unacceptable bulk, scale, amenity or environmental impacts.']

Ratio Decidendi

Conditional consent was warranted because, although the proposed FSR exceeded the DCP control due to basement floor space, the proposal complied with the building envelope and height controls, the additional basement floor space was largely indiscernible, it enabled desirable ESD components, it did not create adverse neighbour amenity or streetscape impacts, and the objectives of the bulk and scale design elements were satisfied.

Court Disposition

Appeal allowed; development consent granted subject to conditions.

Orders

  • ['The appeal is allowed.' 'Development is granted to DA 460/2005 for demolition of an existing dwelling and construction of a 2 storey dwelling over basement at 14 Teemer Street, Tennyson Point, subject to the conditions in Annexure "A".' 'The exhibits may be returned except for 1 (part conditions) and A.']