One Livingstone Developments Pty Ltd v Pittwater Council [2003] NSWLEC 302

One Livingstone Developments Pty Ltd v Pittwater Council [2003] NSWLEC 302

The appeal was upheld because, on a merits assessment and having regard to the planning controls and their objectives, the proposed residential flat building was of good design, could be appropriately landscaped, provided adequate separation and amenity, had acceptable privacy, solar access and parking outcomes, and the non-compliances with frontage, site area and northern setback controls were justified; amalgamation with No. 2 would achieve little given the configuration and controls.

Jurisdiction
Australia
Judgment Date
16 September 2003
Procedural Posture
Appeal Under Section 97 of the Environmental Planning and Assessment Act Against Refusal of a Development Application / Ex Tempore Judgment After Hearing
Outcome
Appeal upheld; development application approved subject to conditions.
Legal Topics
['residential Flat Building' 'development Control Plan Non Compliance' 'setbacks and Landscaping' 'amenity Impacts on Adjoining Properties' 'overshadowing and Privacy' 'underground Parking']
['planning and Environment' 'development Applications'] ['residential Flat Building' 'development Control Plan Non Compliance' 'setbacks and Landscaping' 'amenity Impacts on Adjoining Properties' 'overshadowing and Privacy' 'underground Parking']

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Procedural Posture

Appeal Under Section 97 of the Environmental Planning and Assessment Act Against Refusal of a Development Application / Ex Tempore Judgment After Hearing

Legal Issues

  1. 1 ['Whether the proposed residential flat building should be approved despite non-compliance with the 25 m minimum frontage and 1300 m2 minimum site area controls.' 'Whether the proposed side boundary setbacks, particularly the northern boundary setback, were acceptable.' 'Whether the height and form of the building would cause excessive overshadowing or unacceptable amenity impacts on adjoining land, including properties fronting Queens Parade West.' 'Whether the site or adjoining land should be treated as a sandwich block and whether amalgamation with No. 2 was required.' 'Whether landscaping could adequately screen and ameliorate the impacts of the proposed development.' 'Whether parking provision was adequate.']

Ratio Decidendi

The appeal was upheld because, on a merits assessment and having regard to the planning controls and their objectives, the proposed residential flat building was of good design, could be appropriately landscaped, provided adequate separation and amenity, had acceptable privacy, solar access and parking outcomes, and the non-compliances with frontage, site area and northern setback controls were justified; amalgamation with No. 2 would achieve little given the configuration and controls.

Court Disposition

Appeal upheld; development application approved subject to conditions.

Orders

  • ['The appeal in respect of the property known as No. 1 Livingstone Place, Newport, is upheld.' "The development application submitted to Pittwater Council and as amended, and shown in the plans exhibit 'A' prepared by Avalon Drafting numbered CO 23/A Sheet 1-6 dated June 2003 (as amended 6/6/03 and 10/6/03) and CO...