Rocca & Anor v Ashfield Council [2011] NSWLEC 1361

Rocca & Anor v Ashfield Council [2011] NSWLEC 1361

Because the site was not within a heritage conservation area, there was no publicly exhibited draft LEP or certain planning instrument giving the site that status, and the existing dwelling would at most be a contributory item, the Court gave little weight to the council's proposed heritage controls and did not require retention of the dwelling. Subject to agreed amendments reducing height, bulk and scale, the replacement attached dual occupancy would fit the Service Avenue streetscape, satisfy the relevant planning controls apart from an acceptable variation to the second dwelling floor area control, and provide an appropriate built form and streetscape presentation. The development...

Jurisdiction
Australia
Judgment Date
13 December 2011
Procedural Posture
Class 1 Development Application Appeal / Hearing Under S 34 Aa(2)(b)(i) of the Land and Environment Court Act 1979 Following Termination of a Conciliation Conference
Outcome
Appeal upheld
Legal Topics
['development Application Refusal' 'demolition of Existing Dwelling' 'dual Occupancy Development' 'draft Local Environmental Plan' 'heritage Conservation Area' 'streetscape Character' 'bulk, Scale and Height']
['environmental Planning and Development' 'heritage Conservation' 'local Government Planning Controls'] ['development Application Refusal' 'demolition of Existing Dwelling' 'dual Occupancy Development' 'draft Local Environmental Plan' 'heritage Conservation Area' 'streetscape Character' 'bulk, Scale and Height']

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Procedural Posture

Class 1 Development Application Appeal / Hearing Under S 34 Aa(2)(b)(i) of the Land and Environment Court Act 1979 Following Termination of a Conciliation Conference

Legal Issues

  1. 1 ['Whether the existing period cottage dwelling should be demolished due to its asserted distinctive, positive contribution to the locality.' 'Whether the proposed two-storey attached dual occupancy was uncharacteristic of the locality by reason of its form and appearance.' "What weight should be given to the council's resolution and proposed draft LEP to include the site within a heritage conservation area." 'Whether the amended proposal was acceptable having regard to the applicable planning controls and the character of the streetscape.']

Ratio Decidendi

Because the site was not within a heritage conservation area, there was no publicly exhibited draft LEP or certain planning instrument giving the site that status, and the existing dwelling would at most be a contributory item, the Court gave little weight to the council's proposed heritage controls and did not require retention of the dwelling. Subject to agreed amendments reducing height, bulk and scale, the replacement attached dual occupancy would fit the Service Avenue streetscape, satisfy the relevant planning controls apart from an acceptable variation to the second dwelling floor area control, and provide an appropriate built form and streetscape presentation. The development...

Court Disposition

Appeal upheld

Orders

  • ['The appeal is upheld.' 'Development Application No 10.2011.078 for the demolition of an existing dwelling house and the construction of a two-storey attached dual occupancy and a detached garage for two vehicles at the rear of the site at No 13 Service Avenue, Ashfield is approved subject to the conditions in...