Bowden T v Willoughby City Council [2004] NSWLEC 180

Bowden T v Willoughby City Council [2004] NSWLEC 180

The Court was satisfied that the most likely natural ground line meant the proposal was two-storey, not three-storey, and no State Environmental Planning Policy No. 1 objection was required. The existing house already complied numerically with side setback requirements, the public view corridor affected by the...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
29 January 2004
Procedural Posture
Class 1 Appeal Concerning Conditions of Development Consent / Judgment After on Site Hearing
Outcome
Appeal upheld; development consent amended by deleting the deferred commencement requirement and amending conditions.
Legal Topics
['first Floor Extension to Existing House' 'deferred Commencement Condition' 'view Corridor From Public Domain' 'building Height and Storeys' 'side Setbacks' 'roof Colour' 'rainwater Tank Condition']
['planning and Environment Law' 'development Consent' 'residential Development'] ['first Floor Extension to Existing House' 'deferred Commencement Condition' 'view Corridor From Public Domain' 'building Height and Storeys' 'side Setbacks' 'roof Colour' 'rainwater Tank Condition']

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Procedural Posture

Class 1 Appeal Concerning Conditions of Development Consent / Judgment After on Site Hearing

Legal Issues

  1. 1 ['Whether the proposed first floor extension should be treated as more than two storeys and therefore require a State Environmental Planning Policy No. 1 objection to the height limit.' 'Whether deferred commencement condition No. 1 requiring the north wall of the kitchen of the new upper storey to be set back 3 m from the existing north wall below it was justified to preserve a view corridor to Middle Harbour from Linden Way.' 'Whether the proposal satisfied the aims and objectives of the Willoughby Local Environmental Plan 1995, Sydney Regional Environmental Plan No. 23 and Development Control Plan No. 16.' 'Whether the proposal was unacceptable by reason of bulk, scale, streetscape impact, roof colour, television aerial height or objector concerns.' 'Whether the rainwater tank condition should remain as a deferred commencement condition.']

Ratio Decidendi

The Court was satisfied that the most likely natural ground line meant the proposal was two-storey, not three-storey, and no State Environmental Planning Policy No. 1 objection was required. The existing house already complied numerically with side setback requirements, the public view corridor affected by the proposal was of minor value when compared with the wider view over the roof from Linden Way, and the proposal did not exceed maximum floor space ratio, was not out of scale or bulky compared with neighbouring houses, and was in keeping with the locality. There was insufficient reason under Sydney Regional Environmental Plan No. 23, Willoughby Local Environmental Plan 1995 or...

Court Disposition

Appeal upheld; development consent amended by deleting the deferred commencement requirement and amending conditions.

Orders

  • ['The appeal is upheld.' 'Development application No. DA2002/1935 issued by Willoughby City Council on 13 November 2003 is amended by deletion of the Deferred Commencement requirement and deletion of Schedule 1 of the consent.' "Condition 2 of Schedule 2 of the consent is amended to require the proposed rainwater...