Barrett and ors v Blue Mountains City Council [2011] NSWLEC 1341

Barrett and ors v Blue Mountains City Council [2011] NSWLEC 1341

The minor porch encroachment into the secondary road setback had no meaningful streetscape effect and strict compliance was unreasonable and unnecessary, making the SEPP 1 objection well founded. The proposed dwellings substantially complied with the applicable LEP development standards and were consistent with the established character and streetscape. The removal of the Hybrid tree was justified by expert and scientific evidence of decay and safety risk, while impacts on rare flora and rock outcrops were minimised and no practicable alternative was available. After the amended landscape plan adequately achieved the intent of cl 66, consent could be granted, and the council's proposed...

Jurisdiction
Australia
Judgment Date
02 November 2011
Procedural Posture
Class 1 Appeal Against Refusal of Development Application N X/443/2010 / Hearing Held Forthwith After Termination of Conciliation Conference Under S 34 Aa(2)(b) of the Land and Environment Court Act 1979
Outcome
Appeal upheld; development application approved subject to conditions in Annexure A.
Legal Topics
['detached Dual Occupancy Development' 'sepp 1 Objection' 'secondary Road Setback' 'streetscape and Character' 'vegetation Removal' 'rare Species of Flora' 'significant Tree' 'landscape Plan']
['planning and Environment Law' 'development Consent'] ['detached Dual Occupancy Development' 'sepp 1 Objection' 'secondary Road Setback' 'streetscape and Character' 'vegetation Removal' 'rare Species of Flora' 'significant Tree' 'landscape Plan']

Case Brief

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Procedural Posture

Class 1 Appeal Against Refusal of Development Application N X/443/2010 / Hearing Held Forthwith After Termination of Conciliation Conference Under S 34 Aa(2)(b) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether the SEPP 1 objection to the breach of the 4 metre secondary road setback development standard was well founded.' 'Whether the proposed built form was unacceptable in its impact on the character and streetscape of the area.' 'Whether the removal of the Hybrid tree and other vegetation was acceptable having regard to scenic quality, safety and character impacts.' 'Whether impacts on Faulconbridge Mallee Ash, a rare species of flora, and rock outcrops satisfied the requirements of cll 44 and 52 of Blue Mountains Local Environmental Plan 2005.' 'Whether a detailed landscape plan satisfying cl 66 of Blue Mountains Local Environmental Plan 2005 had been provided.']

Ratio Decidendi

The minor porch encroachment into the secondary road setback had no meaningful streetscape effect and strict compliance was unreasonable and unnecessary, making the SEPP 1 objection well founded. The proposed dwellings substantially complied with the applicable LEP development standards and were consistent with the established character and streetscape. The removal of the Hybrid tree was justified by expert and scientific evidence of decay and safety risk, while impacts on rare flora and rock outcrops were minimised and no practicable alternative was available. After the amended landscape plan adequately achieved the intent of cl 66, consent could be granted, and the council's proposed...

Court Disposition

Appeal upheld; development application approved subject to conditions in Annexure A.

Orders

  • ['The appeal is upheld.' 'Development Application N X/443/2010 for the construction of a detached dual occupancy development at 47 St Georges Crescent, Faulconbridge is approved subject to the conditions in Annexure "A".' 'The exhibits are returned with the exception of 1 and B.']