Tang v Waverley Council [2011] NSWLEC 1334

Tang v Waverley Council [2011] NSWLEC 1334

The amended dual occupancy was approved because it was permissible with consent, complied with the height and floor space controls, was only marginally below the DCP site area guideline and had a reduced side setback that did not warrant refusal. The 1.4 m reduction to the rear element of the southern dwelling achieved a reasonable balance by providing some morning solar access to 58 Ocean Street, and the remaining amenity, privacy, visual and streetscape impacts were not unreasonable in the circumstances.

Jurisdiction
Australia
Judgment Date
21 October 2011
Procedural Posture
Class 1 Development Application Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 / Formal Determination After Termination of Conciliation Conference, With Consent Orders Handed Up
Outcome
Appeal upheld; amended development application approved subject to conditions; each party to pay its own costs.
Legal Topics
['development Application Appeal' 'dual Occupancy Development' 'development Control Plan Variation' 'streetscape Impact' 'solar Access' 'privacy' 'residential Amenity' 'consent Orders']
['environmental and Planning Law' 'land and Environment Court Proceedings'] ['development Application Appeal' 'dual Occupancy Development' 'development Control Plan Variation' 'streetscape Impact' 'solar Access' 'privacy' 'residential Amenity' 'consent Orders']

Case Brief

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Procedural Posture

Class 1 Development Application Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 / Formal Determination After Termination of Conciliation Conference, With Consent Orders Handed Up

Legal Issues

  1. 1 ["Whether the proposed dual occupancy at 56 Ocean Street, Bondi should be approved despite Waverley Council's refusal." 'Whether the amended development was acceptable having regard to the Waverley Local Environmental Plan and Waverley Residential DCP, including site area, side setback, height and floor space controls.' 'Whether the amended development would unreasonably affect the amenity of 58 Ocean Street through overshadowing, loss of solar access, privacy impacts or visual impacts.' 'Whether the proposed development would fit with the streetscape and character of the low-density residential area.']

Ratio Decidendi

The amended dual occupancy was approved because it was permissible with consent, complied with the height and floor space controls, was only marginally below the DCP site area guideline and had a reduced side setback that did not warrant refusal. The 1.4 m reduction to the rear element of the southern dwelling achieved a reasonable balance by providing some morning solar access to 58 Ocean Street, and the remaining amenity, privacy, visual and streetscape impacts were not unreasonable in the circumstances.

Court Disposition

Appeal upheld; amended development application approved subject to conditions; each party to pay its own costs.

Orders

  • ['The appeal in respect of the property known as 56 Ocean Street, Bondi is upheld.' 'The development application submitted to Waverley Council and as amended and shown in exhibit E is approved, subject to the conditions contained in annexure A.' 'Each party is to pay its own costs in the proceedings.' 'The exhibits...