Deng v Burwood Council [2018] NSWLEC 1536

Deng v Burwood Council [2018] NSWLEC 1536

The proposal was refused because the first-floor balconies facing Wyatt Lane would create real and significant visual privacy impacts by allowing direct overlooking into the private open space and pool/backyard areas of neighbouring low density properties to the west. Those impacts were rationally founded, inconsistent with relevant Burwood Development Control Plan 2013 objectives for amenity and setbacks, and made the proposal incompatible with the local character at the interface with the low density setting for the purposes of cl 16A of State Environmental Planning Policy (Affordable Rental Housing) 2009. The affordable housing and other benefits did not outweigh those impacts.

Jurisdiction
Australia
Judgment Date
12 October 2018
Procedural Posture
Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. Da172/2016 / Final Determination
Outcome
The appeal is dismissed and Development Application No. DA172/2016 is refused.
Legal Topics
['residential Development' 'state Environmental Planning Policy (affordable Rental Housing) 2009' 'visual Privacy' 'amenity' 'local Character Compatibility' 'zone Interface']
['planning and Environment' 'development Consent'] ['residential Development' 'state Environmental Planning Policy (affordable Rental Housing) 2009' 'visual Privacy' 'amenity' 'local Character Compatibility' 'zone Interface']

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Procedural Posture

Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. Da172/2016 / Final Determination

Legal Issues

  1. 1 ['Whether the proposed twelve-townhouse development should be approved despite asserted amenity impacts on neighbouring properties to the west of Wyatt Lane.' 'Whether the design, including first-floor balconies facing Wyatt Lane, would cause unacceptable visual privacy impacts on private open space areas of nearby Burwood Road properties.' 'Whether the development was compatible with the character of the local area for the purposes of cl 16A of State Environmental Planning Policy (Affordable Rental Housing) 2009.' 'Whether the benefits of affordable rental housing and compliance with floor space ratio through the SEPP bonus outweighed the identified impacts.']

Ratio Decidendi

The proposal was refused because the first-floor balconies facing Wyatt Lane would create real and significant visual privacy impacts by allowing direct overlooking into the private open space and pool/backyard areas of neighbouring low density properties to the west. Those impacts were rationally founded, inconsistent with relevant Burwood Development Control Plan 2013 objectives for amenity and setbacks, and made the proposal incompatible with the local character at the interface with the low density setting for the purposes of cl 16A of State Environmental Planning Policy (Affordable Rental Housing) 2009. The affordable housing and other benefits did not outweigh those impacts.

Court Disposition

The appeal is dismissed and Development Application No. DA172/2016 is refused.

Orders

  • ['Leave granted to rely on amended plans.' 'The appeal is dismissed.' 'Development Application No. DA172/2016 for the demolition of the existing single storey brick dwelling, removal of trees and pool and the construction of twelve townhouses and underground parking at 31 Wyatt Avenue Burwood is refused.' 'The...