Heywood v Hunters Hill Council [2007] NSWLEC 124

Heywood v Hunters Hill Council [2007] NSWLEC 124

The Court found that DCP 15 permits variations to setback and garden area requirements where the proposal meets the intent of the objectives, and that in this case adequate transition and landscaping were provided, adjoining owners supported the development, and any breach was minor or justified.

Parties
Applicant: Peter & Marion Heywood; Respondent: Hunters Hill Council
Jurisdiction
Australia
Judgment Date
07 March 2007
Procedural Posture
Appeal / Judgment
Outcome
Appeal upheld
Legal Topics
Development Application, Setback Requirements, Garden Area Provisions, Variation of Planning Controls
Planning and Environment Law Development Application Setback Requirements Garden Area Provisions Variation of Planning Controls

Case Brief

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Parties

Peter & Marion Heywood

Applicant

Hunters Hill Council

Respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether departure from the rear setback requirement can be supported
  2. 2 Whether departure from the side setback requirement can be supported
  3. 3 Whether there was a departure from the garden area requirement and if so, whether the departure can be supported

Ratio Decidendi

The Court found that DCP 15 permits variations to setback and garden area requirements where the proposal meets the intent of the objectives, and that in this case adequate transition and landscaping were provided, adjoining owners supported the development, and any breach was minor or justified.

Court Disposition

Appeal upheld

Orders

  • The appeal is upheld.
  • Development Application 06/1119 for the erection of a vergola at 29 Mortimer Lewis Drive, Huntleys Cove is approved subject to conditions in Annexure A.