Payne S v Sutherland SC [2005] NSWLEC 97

Payne S v Sutherland SC [2005] NSWLEC 97

Although the SEPP 1 objection to the small allotment depth non-compliance was accepted and the proposed subdivision and building form could in principle have been acceptable, consent could not be granted because the proposal required removal of two significant scribbly gum trees that contributed materially to the natural streetscape character and canopy, could be retained with design changes, and whose removal would be contrary to the relevant vegetation protection objectives and cl. 32 of LEP 2000.

Jurisdiction
Australia
Judgment Date
11 March 2005
Procedural Posture
Development Appeal Concerning Development Application No 04/0290 / Judgment After Hearing; Appeal Dismissed and Development Consent Refused
Outcome
Appeal dismissed; development consent refused.
Legal Topics
['demolition of Existing Dwelling' 'subdivision Into Two Allotments' 'attached Dual Occupancy Development' 'streetscape and Character' 'retention of Mature Trees' 'foreshore Scenic Protection Area' 'sepp 1 Objection to Allotment Depth Development Standard']
['environmental and Planning Law' 'development Consent' 'land Subdivision'] ['demolition of Existing Dwelling' 'subdivision Into Two Allotments' 'attached Dual Occupancy Development' 'streetscape and Character' 'retention of Mature Trees' 'foreshore Scenic Protection Area' 'sepp 1 Objection to Allotment Depth Development Standard']

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Procedural Posture

Development Appeal Concerning Development Application No 04/0290 / Judgment After Hearing; Appeal Dismissed and Development Consent Refused

Legal Issues

  1. 1 ['Whether the proposed subdivision arrangement including lot dimensions would be appropriate.' 'Whether the proposed buildings would be appropriate in the streetscape of Shell Road and Dunkeld Close, taking into account the existing and future character of the locality.' 'Whether the mature trees on the site should be retained.']

Ratio Decidendi

Although the SEPP 1 objection to the small allotment depth non-compliance was accepted and the proposed subdivision and building form could in principle have been acceptable, consent could not be granted because the proposal required removal of two significant scribbly gum trees that contributed materially to the natural streetscape character and canopy, could be retained with design changes, and whose removal would be contrary to the relevant vegetation protection objectives and cl. 32 of LEP 2000.

Court Disposition

Appeal dismissed; development consent refused.

Orders

  • ['The appeal is dismissed.' 'Development Application No 04/0290 for the demolition of an existing dwelling, the subdivision of the land into two allotments and the erection of an attached dual occupancy development at 28 Shell Road, Burraneer is determined by the refusal of consent.' 'Exhibit B is retained.']