Drivas v City of Canada Bay Council [2007] NSWLEC 314

Drivas v City of Canada Bay Council [2007] NSWLEC 314

The proposal was permissible with consent and, although it exceeded the DCP floor space ratio control, it could meet the required standard of good neighbourly respect if modified to reduce amenity impacts. With deletion of the pool and pergola, revised landscaping, balcony and privacy changes, obscure glazing, specified lowering of the upper level, increased setbacks on the 39 Thompson Street side, and vehicle access and fencing changes, the impacts on views, light, privacy, streetscape and pedestrian safety were sufficiently ameliorated to justify upholding the appeal and granting development consent subject to revised plans and conditions.

Jurisdiction
Australia
Judgment Date
01 May 2007
Procedural Posture
Development Application Appeal Pursuant to S 97 of the Environmental Planning and Assessment Act 1979 / Ex Tempore Judgment on Appeal Against Refusal of Development Application 284 of 2005
Outcome
Appeal upheld; development consent granted subject to revised conditions and revised plans.
Legal Topics
['development Consent' 'development Control Plan' 'floor Space Ratio' 'views' 'solar Access and Light' 'setbacks' 'privacy' 'streetscape' 'vehicle Access and Pedestrian Safety']
['planning and Environment Law'] ['development Consent' 'development Control Plan' 'floor Space Ratio' 'views' 'solar Access and Light' 'setbacks' 'privacy' 'streetscape' 'vehicle Access and Pedestrian Safety']

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Procedural Posture

Development Application Appeal Pursuant to S 97 of the Environmental Planning and Assessment Act 1979 / Ex Tempore Judgment on Appeal Against Refusal of Development Application 284 of 2005

Legal Issues

  1. 1 ['Whether the proposed demolition of the existing building and erection of a part two storey and part three storey dwelling was broadly capable of approval despite departures from the Drummoyne Area Comprehensive Development Control Plan.' 'Whether modifications were required to address view impacts on 43 Thompson Street and solar and general light access impacts on 39 Thompson Street.' 'Whether side setbacks, obscure glazing, deletion of the pergola, balcony changes, landscaping changes, and vehicle access changes were necessary to make the proposal acceptable.' 'Whether the protruding element of the underground parking above natural ground level required alteration.']

Ratio Decidendi

The proposal was permissible with consent and, although it exceeded the DCP floor space ratio control, it could meet the required standard of good neighbourly respect if modified to reduce amenity impacts. With deletion of the pool and pergola, revised landscaping, balcony and privacy changes, obscure glazing, specified lowering of the upper level, increased setbacks on the 39 Thompson Street side, and vehicle access and fencing changes, the impacts on views, light, privacy, streetscape and pedestrian safety were sufficiently ameliorated to justify upholding the appeal and granting development consent subject to revised plans and conditions.

Court Disposition

Appeal upheld; development consent granted subject to revised conditions and revised plans.

Orders

  • ['Development approval is to be granted to Development Application 284 of 2005 subject to revised conditions settled between the parties to give effect to the decision and the preparation and filing of revised plans to give effect to the decision.']