Radray Constructions v Hornsby Shire Council [2007] NSWLEC 34

Radray Constructions v Hornsby Shire Council [2007] NSWLEC 34

The proposal was unacceptable because buildings and basement excavation intruded into the riparian zone, with the basement excavation under the northern building coming to the bank of the watercourse, breaching both the Department of Natural Resources' General Terms of Approval and cl 31(g) of the State Environmental Planning Policy Seniors Living. Deleting Unit 7 would not cure that major flaw, and an adjournment to amend the plans was inappropriate.

Jurisdiction
Australia
Judgment Date
31 January 2007
Procedural Posture
Development Application Appeal / Appeal Against Refusal of Development Application Dismissed
Outcome
Appeal dismissed; development application determined by refusal.
Legal Topics
['seniors Living Development' 'riparian Zone' 'integrated Development' 'flood Liability' 'tree Removal' 'landscaping' 'threatened Species']
['environmental Planning and Assessment' 'land and Environment' 'development Control'] ['seniors Living Development' 'riparian Zone' 'integrated Development' 'flood Liability' 'tree Removal' 'landscaping' 'threatened Species']

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Procedural Posture

Development Application Appeal / Appeal Against Refusal of Development Application Dismissed

Legal Issues

  1. 1 ['Whether the proposed Seniors Living development was a satisfactory response to the flood liability of the site.' "Whether the proposal's encroachment into the riparian zone was acceptable." 'Whether the loss of trees was acceptable.' 'Whether the proposal complied with design principles and requirements in cls 31, 32 and 33 of the State Environmental Planning Policy Seniors Living.' 'Whether the landscaping and landscaping plan were appropriate and adequate.' "Whether objectors' concerns about flooding, visual impact, overlooking and overshadowing were valid." 'Whether leave should be granted to adjourn the matter to allow amended plans deleting Unit 7.']

Ratio Decidendi

The proposal was unacceptable because buildings and basement excavation intruded into the riparian zone, with the basement excavation under the northern building coming to the bank of the watercourse, breaching both the Department of Natural Resources' General Terms of Approval and cl 31(g) of the State Environmental Planning Policy Seniors Living. Deleting Unit 7 would not cure that major flaw, and an adjournment to amend the plans was inappropriate.

Court Disposition

Appeal dismissed; development application determined by refusal.

Orders

  • ['The appeal is dismissed.' 'Development application to demolish the existing buildings and erect a Seniors Living development containing 18 dwellings over basement parking on lot 12 DP 571045 (15 Eyles Avenue) and lot 3 DP 201713 (15 Anthony Street), Carlingford is determined by refusal.' 'The exhibits are returned.']