Force G Pty Ltd & Anor v Penrith City Council [2015] NSWLEC 1092

Force G Pty Ltd & Anor v Penrith City Council [2015] NSWLEC 1092

The appeal was dismissed because consent could not be granted. The Court was not satisfied that the proposal met objective (iv) of the 2(g) zone or aim (c) of LEP1998, because it adversely affected amenity and was inconsistent with the established planning framework for Waterside Estate. The Court also had no evidence enabling satisfaction under cl 20(3) that noise criteria would not be exceeded. The proposed development would contravene condition 82 of DA11/0602 because it was contrary to the approved dwelling and detached single storey garage for the site. On the merits, the proposal was inconsistent with the 88B restriction, DCP and masterplanning framework, unsuitable for the site,...

Jurisdiction
Australia
Judgment Date
10 April 2015
Procedural Posture
Class 1 Appeal Against Deemed Refusal of a Development Application / Principal Judgment After Hearing; Conciliation Conference Under S34 AA of the Land and Environment Court Act 1979 Terminated Without Agreement
Outcome
Appeal dismissed; development application refused consent.
Legal Topics
['development Application for Dwelling House and Secondary Dwelling' 'consistency With Original Development Consent and Restriction on Use of Land' 'zone Objectives and Development Control Plan Controls' 'overshadowing and Solar Access' 'parking' 'privacy' 'urban Design' 'acoustic Impacts' 'public Interest']
['planning and Environment' 'development Consent' 'land Use and Zoning'] ['development Application for Dwelling House and Secondary Dwelling' 'consistency With Original Development Consent and Restriction on Use of Land' 'zone Objectives and Development Control Plan Controls' 'overshadowing and Solar Access' 'parking' 'privacy' 'urban Design' 'acoustic Impacts' 'public Interest']

Case Brief

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Procedural Posture

Class 1 Appeal Against Deemed Refusal of a Development Application / Principal Judgment After Hearing; Conciliation Conference Under S34 AA of the Land and Environment Court Act 1979 Terminated Without Agreement

Legal Issues

  1. 1 ['Whether the proposed two storey dwelling with detached garage and secondary dwelling could be approved despite inconsistency with Development Consent DA11/0602 and the registered restriction on use of the land' 'Whether the development was contrary to the aims or objectives of Penrith Local Environmental Plan 1998 (Lakes Environs) or the objectives of Zone 2(g) Residential (Waterways)' 'Whether the Court could be satisfied that the applicable noise level criteria would not be exceeded without an acoustic report' 'Whether the proposal caused unacceptable amenity impacts, including overshadowing, privacy impacts, visual impact and inadequate open space or parking' 'Whether the site was suitable for two dwellings and whether approval would be in the public interest']

Ratio Decidendi

The appeal was dismissed because consent could not be granted. The Court was not satisfied that the proposal met objective (iv) of the 2(g) zone or aim (c) of LEP1998, because it adversely affected amenity and was inconsistent with the established planning framework for Waterside Estate. The Court also had no evidence enabling satisfaction under cl 20(3) that noise criteria would not be exceeded. The proposed development would contravene condition 82 of DA11/0602 because it was contrary to the approved dwelling and detached single storey garage for the site. On the merits, the proposal was inconsistent with the 88B restriction, DCP and masterplanning framework, unsuitable for the site,...

Court Disposition

Appeal dismissed; development application refused consent.

Orders

  • ['The appeal is dismissed.' 'Development Application 14/2012 to build a 2 storey dwelling with detached garage and secondary dwelling above at 47 Lakeview Drive, Cranebrook is refused consent.' 'The exhibits, other than exhibits A, B and 2, are returned.']