Phoenix Corporation Pty Ltd v Penrith City Council [2011] NSWLEC 1178

Phoenix Corporation Pty Ltd v Penrith City Council [2011] NSWLEC 1178

The appeal was dismissed because the proposed three to five storey residential flat development, with large pitched roofs and extensive floor plates, did not complement or respond compatibly to the surrounding predominantly one and two storey residential area, and failed the SEPP 65 design quality principles for Context, Scale and Built Form and the DCP 2006 requirement that dwellings be of a scale and character complementing those existing in the surrounding area. The proposed deferred commencement condition did not sufficiently address that incompatibility and introduced uncertainty about impacts.

Jurisdiction
Australia
Judgment Date
30 June 2011
Procedural Posture
Class 1 Appeal Against Refusal of a Development Application / Principal Judgment After Hearing
Outcome
Appeal dismissed; development application refused.
Legal Topics
['development Application for Residential Flat Building' 'compatibility With Existing Area' 'residential Amenity' 'flooding and Evacuation' 'sepp 65 Design Quality Principles']
['planning and Environment Law'] ['development Application for Residential Flat Building' 'compatibility With Existing Area' 'residential Amenity' 'flooding and Evacuation' 'sepp 65 Design Quality Principles']

Case Brief

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Procedural Posture

Class 1 Appeal Against Refusal of a Development Application / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the height, bulk and scale of the proposal is compatible with its surrounding context.' 'Whether the proposal achieves acceptable residential amenity.' 'Whether the site can be evacuated.']

Ratio Decidendi

The appeal was dismissed because the proposed three to five storey residential flat development, with large pitched roofs and extensive floor plates, did not complement or respond compatibly to the surrounding predominantly one and two storey residential area, and failed the SEPP 65 design quality principles for Context, Scale and Built Form and the DCP 2006 requirement that dwellings be of a scale and character complementing those existing in the surrounding area. The proposed deferred commencement condition did not sufficiently address that incompatibility and introduced uncertainty about impacts.

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed.' 'The development application to construct a residential flat building at 1-9 Lamrock Street, Emu Plains, is refused.' 'The exhibits, except Exhibit 1, may be returned.']