Nanevski v Rockdale City Council [2005] NSWLEC 533

Nanevski v Rockdale City Council [2005] NSWLEC 533

Given the site's prominence, reduced street setbacks, full two-storey walls, dwelling 2 being two-storey instead of single storey, and the cumulative concessions already granted, the proposed building would be highly prominent in the streetscape. Conditions reducing the garage and driveway width, increasing setbacks, and requiring the 3 m x 3 m corner splay were necessary to moderate bulk, landscape and streetscape impacts and provide driver safety sight lines. Some resolved or corrective plan matters could be amended or deleted, so the appeal was upheld only in part.

Jurisdiction
Australia
Judgment Date
02 September 2005
Procedural Posture
Class 1 Appeal Concerning Refusal of a S 96 Application to Amend Conditions of Consent for an Attached Two Storey Dual Occupancy With Subdivision / Judgment After Hearing
Outcome
Appeal upheld in part.
Legal Topics
['s 96 Modification of Development Consent' 'dual Occupancy With Subdivision' 'streetscape and Building Bulk' 'private Open Space' 'setbacks' 'floor Space Ratio' 'splay Corner Dedication' 'deferred Commencement Conditions']
['environmental Planning and Assessment' 'development Control' 'land and Environment Court Proceedings'] ['s 96 Modification of Development Consent' 'dual Occupancy With Subdivision' 'streetscape and Building Bulk' 'private Open Space' 'setbacks' 'floor Space Ratio' 'splay Corner Dedication' 'deferred Commencement Conditions']

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Procedural Posture

Class 1 Appeal Concerning Refusal of a S 96 Application to Amend Conditions of Consent for an Attached Two Storey Dual Occupancy With Subdivision / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the proposal complied with objectives concerning preservation of built environment quality, higher standards of merit and design, and integration into established areas under cl 2 of Development Control Plan No. 39, Dual Occupancy and Granny Flat Development.' 'Whether the proposal complied with maximum floor space ratio requirements under cl 5.3 and cl 5.4 of the Dual Occupancy Development Control Plan.' 'Whether the proposal complied with cl 9 objectives and performance criteria of the Dual Occupancy Development Control Plan.' 'Whether the proposal complied with building setback requirements in cl 13 of the Dual Occupancy Development Control Plan.' 'Whether the proposal provided adequate and usable private open space under cl 14 of the Dual Occupancy Development Control Plan, having regard to solar access, location forward of the building line and overlooking.' 'Whether deletion of the 3 m x 3 m splay corner dedication would have undesirable safety implications for pedestrian and traffic movement.' 'Whether the proposal ought to be approved having regard to the previous agreement between the applicant and council reflected in development consent 1058/03.']

Ratio Decidendi

Given the site's prominence, reduced street setbacks, full two-storey walls, dwelling 2 being two-storey instead of single storey, and the cumulative concessions already granted, the proposed building would be highly prominent in the streetscape. Conditions reducing the garage and driveway width, increasing setbacks, and requiring the 3 m x 3 m corner splay were necessary to moderate bulk, landscape and streetscape impacts and provide driver safety sight lines. Some resolved or corrective plan matters could be amended or deleted, so the appeal was upheld only in part.

Court Disposition

Appeal upheld in part.

Orders

  • ['The appeal is upheld in part.' 'Development consent DA1058/03 issued by Rockdale City Council for an attached dual occupancy with subdivision at No. 2 Meriel Street, Sans Souci, is amended as set out in Annexure A hereto.' 'The exhibits are returned to the parties except Exhibits 4, 5, 8 and C, D and E.' 'No...