Southall & Anor v Lane Cove Council [2011] NSWLEC 1051

Southall & Anor v Lane Cove Council [2011] NSWLEC 1051

The proposed deletion of conditions 2, 4 and 5 was refused because the additional terrace, stair and garage roof uses would be inconsistent with the objectives of the council's planning controls, introduce foreign building elements into an established and consistent streetscape, reduce landscaping opportunities, significantly change the character of the area and likely affect amenity through noise, while the garage setback and splay condition had a planning purpose in pedestrian safety, reflected council policy and had been consistently applied.

Jurisdiction
Australia
Judgment Date
02 March 2011
Procedural Posture
Class 1 Appeal Concerning an Application to Modify Development Consent Conditions / Determination of Proceedings Pursuant to S34(4)(b)(ii) of the Land and Environment Court Act 1979
Outcome
Appeal dismissed; application to modify Development Consent No. D94/10 by deleting conditions 2, 4 and 5 refused.
Legal Topics
['modification of Development Consent' 'streetscape' 'front Setback' 'garage Setback and Driveway Splay' 'rooftop Terrace' 'residential Amenity' 'visual and Acoustic Privacy' 'pedestrian Safety']
['planning and Environmental Law'] ['modification of Development Consent' 'streetscape' 'front Setback' 'garage Setback and Driveway Splay' 'rooftop Terrace' 'residential Amenity' 'visual and Acoustic Privacy' 'pedestrian Safety']

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Procedural Posture

Class 1 Appeal Concerning an Application to Modify Development Consent Conditions / Determination of Proceedings Pursuant to S34(4)(b)(ii) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether condition 2 requiring reduction of the front ground floor terrace, deletion of front steps and landscaping of the area should be deleted.' 'Whether condition 4 requiring the garage to be set back 1 m from the front boundary with a 1 m x 1 m splay on each side of the driveway should be deleted.' 'Whether condition 5 requiring the roof above the garage to be non-trafficable should be deleted.' 'Whether the proposed changes were consistent with the objectives of the Lane Cove Local Environmental Plan 2009 and Lane Cove Development Control Plan.']

Ratio Decidendi

The proposed deletion of conditions 2, 4 and 5 was refused because the additional terrace, stair and garage roof uses would be inconsistent with the objectives of the council's planning controls, introduce foreign building elements into an established and consistent streetscape, reduce landscaping opportunities, significantly change the character of the area and likely affect amenity through noise, while the garage setback and splay condition had a planning purpose in pedestrian safety, reflected council policy and had been consistently applied.

Court Disposition

Appeal dismissed; application to modify Development Consent No. D94/10 by deleting conditions 2, 4 and 5 refused.

Orders

  • ['The appeal is dismissed.' 'The application to modify Development Consent No. D94/10 by the deletion of conditions 2, 4 and 5 is refused.' 'The exhibits are returned.']