Tepazo Pty Limited v Lane Cove Council [2014] NSWLEC 1078

Tepazo Pty Limited v Lane Cove Council [2014] NSWLEC 1078

The clause 4.6 request could not be upheld because the proposed building, more than three times the applicable 12m height control and exceeding even the new 25m control, did not minimise overshadowing or visual impacts, did not respect the amenity of nearby residences at the zone interface, and was inconsistent with the objectives of the height development standard and objective 5 of the R4 zone. The preconditions to granting consent were therefore not met, and the appeal had to be dismissed.

Jurisdiction
Australia
Judgment Date
09 May 2014
Procedural Posture
Class 1 Appeal Against Refusal of Development Application D205/13 / Principal Judgment After Hearing
Outcome
Appeal dismissed; development application refused consent.
Legal Topics
['building Height Development Standard' 'clause 4.6 Variation Request' 'bulk and Scale' 'desired Future Character' 'overshadowing and Visual Impacts' 'zone Interface' 'amenity of Adjoining Properties']
['planning and Environment' 'development Consent' 'residential Flat Development'] ['building Height Development Standard' 'clause 4.6 Variation Request' 'bulk and Scale' 'desired Future Character' 'overshadowing and Visual Impacts' 'zone Interface' 'amenity of Adjoining Properties']

Case Brief

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Procedural Posture

Class 1 Appeal Against Refusal of Development Application D205/13 / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the written objection to the development standards for height and FSR was well founded.' 'Whether the siting and design of the development was appropriate in relation to its bulk and scale, setbacks and character.' 'Whether there was adequate provision for solar access to the units.' 'Whether adequate private and communal open space was provided.' 'Whether parking provision was adequate having regard to tandem parking spaces.' 'Whether the extent of excavation was appropriate.' 'Whether adequate provision for accessibility and adaptable units was made.' 'Whether the development adversely impacted on the amenity of adjoining properties.' 'Whether the building would comply with the relevant provisions of the Building Code of Australia.' 'Whether the site was suitable for the proposed development.' 'Whether adequate information had been provided to allow proper assessment of the application.' 'Whether the development would result in an undesirable precedent having regard to its height and the submissions received.']

Ratio Decidendi

The clause 4.6 request could not be upheld because the proposed building, more than three times the applicable 12m height control and exceeding even the new 25m control, did not minimise overshadowing or visual impacts, did not respect the amenity of nearby residences at the zone interface, and was inconsistent with the objectives of the height development standard and objective 5 of the R4 zone. The preconditions to granting consent were therefore not met, and the appeal had to be dismissed.

Court Disposition

Appeal dismissed; development application refused consent.

Orders

  • ['The appeal is dismissed.' 'Development Application is refused consent.' 'The exhibits, other than exhibits A, C, D, E, F, W and1 are returned.']