Pole Home Centre and Lidbury Summers & Whiteman v Great Lakes Council [2009] NSWLEC 1016

Pole Home Centre and Lidbury Summers & Whiteman v Great Lakes Council [2009] NSWLEC 1016

The objections did not justify refusal because the proposal preserved significant trees, height exceedance was considered reasonable with retained landscaping, visitor parking on the kerb was acceptable, excavation was not controlled and did not warrant deletion of a dwelling, no FSR control applied, overshadowing arose from a compliant and sufficiently set back part of the development, and privacy measures addressed overlooking. The proposal was not offensive and was reasonable, so the agreed consent orders were made.

Jurisdiction
Australia
Judgment Date
19 January 2009
Procedural Posture
Appeals Against Refusal of Development Applications / Consent Orders
Outcome
Both appeals upheld and development consent granted subject to conditions in Annexure A.
Legal Topics
['development Application' 'development Consent' 'consent Orders' 'demolition and Construction of Dwellings' 'subdivision' 'objector Concerns' 'development Control Plan Height Restriction' 'overshadowing' 'overlooking' 'floor Space Ratio' 'on Site Visitor Parking' 'excavation' 'ecological Value and Significant Trees']
['planning and Environment Law'] ['development Application' 'development Consent' 'consent Orders' 'demolition and Construction of Dwellings' 'subdivision' 'objector Concerns' 'development Control Plan Height Restriction' 'overshadowing' 'overlooking' 'floor Space Ratio' 'on Site Visitor Parking' 'excavation' 'ecological Value and Significant Trees']

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Procedural Posture

Appeals Against Refusal of Development Applications / Consent Orders

Legal Issues

  1. 1 ['Whether consent orders should be made for the development application to demolish the existing house and construct three dwellings on lot 18 DP 732419.' 'Whether consent orders should be made for the development application to subdivide lot 18 DP 732419 into two allotments.' 'Whether objector concerns about ecological value, height, visitor parking, excavation, floor space ratio, overshadowing and overlooking justified refusal of consent orders.']

Ratio Decidendi

The objections did not justify refusal because the proposal preserved significant trees, height exceedance was considered reasonable with retained landscaping, visitor parking on the kerb was acceptable, excavation was not controlled and did not warrant deletion of a dwelling, no FSR control applied, overshadowing arose from a compliant and sufficiently set back part of the development, and privacy measures addressed overlooking. The proposal was not offensive and was reasonable, so the agreed consent orders were made.

Court Disposition

Both appeals upheld and development consent granted subject to conditions in Annexure A.

Orders

  • ['Appeal No 10571 of 2008: The appeal is upheld.' 'Appeal No 10571 of 2008: Development consent is granted to Development Application 13/2008 for the demolition of the existing building and the construction of three dwellings on lot 18 DP 732419, known as 23 Belbourie Crescent, Boomerang Beach, subject to the...