Graham v Hornsby Shire Council [2008] NSWLEC 1114

Graham v Hornsby Shire Council [2008] NSWLEC 1114

The swimming pool was ancillary to the dwelling, provided a facility for outdoor activities and recreation, and was not expressly excluded as private open space by the DCP. In any event, the outdoor deck, swimming pool with generous surrounds, and lower level area together provided adequate private open space to meet the likely needs of Unit 1 occupants and satisfied the DCP objectives and performance criteria.

Jurisdiction
Australia
Judgment Date
06 March 2008
Procedural Posture
Appeal Against Refusal of Development Application / Section 34 Conference; Proceedings Disposed of Under S 34(4)(b)(ii)
Outcome
Appeal upheld; development application approved subject to conditions.
Legal Topics
['development Application' 'multi Unit Housing' 'private Open Space' 'development Control Plan Compliance']
['planning and Environment Law'] ['development Application' 'multi Unit Housing' 'private Open Space' 'development Control Plan Compliance']

Case Brief

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Procedural Posture

Appeal Against Refusal of Development Application / Section 34 Conference; Proceedings Disposed of Under S 34(4)(b)(ii)

Legal Issues

  1. 1 ['Whether suitable and adequate private open space was provided for Unit 1.' 'Whether the swimming pool should be included in the private open space area for the purposes of the Low Density Multi Unit Housing Development Control Plan.']

Ratio Decidendi

The swimming pool was ancillary to the dwelling, provided a facility for outdoor activities and recreation, and was not expressly excluded as private open space by the DCP. In any event, the outdoor deck, swimming pool with generous surrounds, and lower level area together provided adequate private open space to meet the likely needs of Unit 1 occupants and satisfied the DCP objectives and performance criteria.

Court Disposition

Appeal upheld; development application approved subject to conditions.

Orders

  • ['The appeal is upheld.' 'The development application (626/2007) for multi unit housing (2 dwellings) at 23 Excelsior Road, Mount Colah, is approved subject to the conditions in Annexure A.' 'The exhibits except Exhibits A, B and 5 may be returned.']