McGhee v Northern Beaches Council [2023] NSWLEC 1405

McGhee v Northern Beaches Council [2023] NSWLEC 1405

The Court was satisfied that the proposed development would gain a view from the site and therefore the Tenacity assessment applied. Although the proposal would take away some of the view from 20 Headland Road and the loss was severe for the affected portion of the southern panoramic view, the assessment had to consider the whole property, which would continue to enjoy significant views including retained views of St Patrick's Estate. The proposal was numerically compliant apart from a slight DCP building envelope exceedance that did not itself affect view loss, and the Applicant had made skilful design changes to reduce the view impact while maintaining development potential and amenity....

Jurisdiction
Australia
Judgment Date
27 July 2023
Procedural Posture
Class 1 Development Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 / Appeal Against Refusal of Development Application Da2021/1734; Conciliation Conference Terminated and Hearing Proceeded to Final Orders
Outcome
Appeal upheld; development consent granted subject to conditions in Annexure A; exhibits retained.
Legal Topics
['development Application Refusal Appeal' 'demolition and Construction of Dwelling House' 'reasonable View Sharing' 'tenacity Planning Principle' 'warringah Development Control Plan Controls' 'conditions of Consent']
['environmental Planning and Assessment' 'land and Environment Court Proceedings' 'residential Development'] ['development Application Refusal Appeal' 'demolition and Construction of Dwelling House' 'reasonable View Sharing' 'tenacity Planning Principle' 'warringah Development Control Plan Controls' 'conditions of Consent']

Case Brief

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Procedural Posture

Class 1 Development Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 / Appeal Against Refusal of Development Application Da2021/1734; Conciliation Conference Terminated and Hearing Proceeded to Final Orders

Legal Issues

  1. 1 ['Whether the proposed development would result in reasonable view sharing between 21 Headland Road, North Curl Curl and 20 Headland Road, North Curl Curl in accordance with Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140.' 'Whether the proposed development would obtain a view from the site such that view sharing principles could be applied.' 'Whether the extent of impact on views from 20 Headland Road was acceptable when assessed from the whole of the property.' 'Whether the proposal causing the view impact was reasonable, including whether a more skilful design could provide the same development potential and amenity with reduced view impact.' "Whether the respondent's proposed additional wording for landscape condition 22 should be included."]

Ratio Decidendi

The Court was satisfied that the proposed development would gain a view from the site and therefore the Tenacity assessment applied. Although the proposal would take away some of the view from 20 Headland Road and the loss was severe for the affected portion of the southern panoramic view, the assessment had to consider the whole property, which would continue to enjoy significant views including retained views of St Patrick's Estate. The proposal was numerically compliant apart from a slight DCP building envelope exceedance that did not itself affect view loss, and the Applicant had made skilful design changes to reduce the view impact while maintaining development potential and amenity....

Court Disposition

Appeal upheld; development consent granted subject to conditions in Annexure A; exhibits retained.

Orders

  • ['The appeal is upheld.' 'Development application No DA2021/1734 for demolition of existing dwelling and construction of a dwelling house and associated landscaping works at 21 Headland Road, Curl Curl legally described as Lot 107 in DP6143 is determined by granting consent to the application subject to the...