Blake v Ku-ring-gai Council [2015] NSWLEC 1398

Blake v Ku-ring-gai Council [2015] NSWLEC 1398

The proposed development is not a 'residential flat building' as defined in SEPP 65 but rather falls within Class 1a under the BCA as townhouses with each dwelling side by side and with individual ground access; therefore, SEPP 65 does not apply and its requirements (including a design verification statement) are not fatal to approval. The development complies with all relevant planning controls including height, floor space, solar access, building separation, and parking, and the pruning to the significant Himalayan Cedar is acceptable and does not warrant refusal.

Parties
Applicant: Peter Blake; Respondent: Ku-ring-gai Council
Jurisdiction
Australia
Judgment Date
07 August 2015
Procedural Posture
Appeal / Judgment on Appeal Against Refusal of Development Application
Outcome
Appeal upheld; development application approved subject to filing of amended plans and conditions
Legal Topics
Development Application, Demolition and Construction of Townhouses, Application of SEPP 65, Streetscape Impact, Building Separation, Solar Access, Pruning of Significant Tree, Site Analysis, Design Verification Statement
Planning and Environment Law Development Application Demolition and Construction of Townhouses Application of SEPP 65 Streetscape Impact Building Separation Solar Access Pruning of Significant Tree +2 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 4 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Peter Blake

Applicant

Ku-ring-gai Council

Respondent

Procedural Posture

Appeal / Judgment on Appeal Against Refusal of Development Application

Legal Issues

  1. 1 Whether SEPP 65 applies to the proposed development
  2. 2 Whether the proposed development should be refused on the basis of urban design, amenity, streetscape, solar access, and pruning of a significant tree
  3. 3 Compliance with statutory and planning controls including building separation and solar access

Ratio Decidendi

The proposed development is not a 'residential flat building' as defined in SEPP 65 but rather falls within Class 1a under the BCA as townhouses with each dwelling side by side and with individual ground access; therefore, SEPP 65 does not apply and its requirements (including a design verification statement) are not fatal to approval. The development complies with all relevant planning controls including height, floor space, solar access, building separation, and parking, and the pruning to the significant Himalayan Cedar is acceptable and does not warrant refusal.

Court Disposition

Appeal upheld; development application approved subject to filing of amended plans and conditions

Orders

  • The appeal is upheld.
  • Development Application No. 370/14 is approved subject to conditions in Annexure A upon filing of agreed amended plans and conditions reflecting the Court's findings and agreed changes.