Suters Architects Pty Ltd v Hornsby Shire Council [2007] NSWLEC 726

Suters Architects Pty Ltd v Hornsby Shire Council [2007] NSWLEC 726

The Court upheld the appeal because there was no sufficient reason to refuse the modified proposal. The subject site itself amalgamated six lots and there was no statutory requirement to consolidate with Kennards; acquisition or access through Kennards and Wanderers Way was commercially and physically unrealistic on the evidence. The proposed access from Pretoria Parade was feasible, the building provided acceptable gateway character, and the principal design concerns concerning solar access, privacy, landscaping, setbacks, balconies and future access could be addressed by amendments and conditions, including deferred commencement conditions.

Jurisdiction
Australia
Judgment Date
02 November 2007
Procedural Posture
Class 1 Appeal / Appeal Against Refusal of DA No.2233/04 for Demolition and Construction of a 9 Storey Mixed Use Development
Outcome
Appeal upheld; deferred development consent granted subject to conditions.
Legal Topics
['development Application Refusal' 'mixed Use Development' 'residential Flat Development' 'site Amalgamation' 'urban Design' 'deep Soil Planting' 'solar Access' 'privacy' 'vehicular Access' 'development Control Plans']
['planning and Environment Law' 'development Consent'] ['development Application Refusal' 'mixed Use Development' 'residential Flat Development' 'site Amalgamation' 'urban Design' 'deep Soil Planting' 'solar Access' 'privacy' 'vehicular Access' 'development Control Plans']

Case Brief

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Procedural Posture

Class 1 Appeal / Appeal Against Refusal of DA No.2233/04 for Demolition and Construction of a 9 Storey Mixed Use Development

Legal Issues

  1. 1 ['Whether the applicant had made sufficient efforts to achieve site amalgamation with the adjacent Kennards property and whether lack of amalgamation justified refusal.' 'Whether the proposed development achieved acceptable planning and urban design outcomes for a gateway site in the Hornsby Town Centre and Pound Road Precinct.' 'Whether the proposed basement and vehicular access arrangements were acceptable despite the Council masterplan preference for access via Wanderers Way.' 'Whether the proposal provided acceptable deep soil planting and landscaping.' 'Whether the proposal achieved adequate solar access under SEPP 65 and the Residential Flat Design Code.' 'Whether the proposal created unacceptable privacy, safety, appearance, view or unit layout impacts.']

Ratio Decidendi

The Court upheld the appeal because there was no sufficient reason to refuse the modified proposal. The subject site itself amalgamated six lots and there was no statutory requirement to consolidate with Kennards; acquisition or access through Kennards and Wanderers Way was commercially and physically unrealistic on the evidence. The proposed access from Pretoria Parade was feasible, the building provided acceptable gateway character, and the principal design concerns concerning solar access, privacy, landscaping, setbacks, balconies and future access could be addressed by amendments and conditions, including deferred commencement conditions.

Court Disposition

Appeal upheld; deferred development consent granted subject to conditions.

Orders

  • ['The appeal is upheld.' 'Deferred development consent is granted to a 9-storey residential flat building with commercial uses on the ground floor, and 53 car spaces in on-site parking at Nos. 93-103 Pacific Highway, Hornsby as shown in drawings nominated in Part 2-Condition 1 of Annexure A, all as amended by and...