Vibuild Pty Limited v Kiama Municipal Council [2007] NSWLEC 643

Vibuild Pty Limited v Kiama Municipal Council [2007] NSWLEC 643

The appeal was dismissed because the proposed private open space and associated 1.5 m privacy fencing within the front setback would be entirely alien and out of character with the existing streetscape, particularly given the established 12 to 14 m building line, and that impact was sufficient on first principles to warrant refusal of the development application.

Jurisdiction
Australia
Judgment Date
21 August 2007
Procedural Posture
Appeal Pursuant to S 97 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Ex Tempore Judgment After Hearing
Outcome
Appeal dismissed; development application refused.
Legal Topics
['dual Occupancy Development' 'private Open Space in Front Setback' 'streetscape Character' 'building Line' 'development Control Plan Compliance' 'solar Access' 'landscaping']
['planning and Environment' 'development Consent'] ['dual Occupancy Development' 'private Open Space in Front Setback' 'streetscape Character' 'building Line' 'development Control Plan Compliance' 'solar Access' 'landscaping']

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Procedural Posture

Appeal Pursuant to S 97 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Ex Tempore Judgment After Hearing

Legal Issues

  1. 1 ['Whether development consent should be granted for a second dwelling on Lot 27 DP 14188, 27 Pacific Avenue, Werri Beach' 'Whether the proposed private open space within the front setback was acceptable having regard to the existing building line and streetscape character' 'Whether concerns about solar access, clothes drying area, driveway landscaping, and pedestrian and vehicle traffic warranted refusal' 'Whether the application should be treated adversely as an attempt to circumvent Council planning controls']

Ratio Decidendi

The appeal was dismissed because the proposed private open space and associated 1.5 m privacy fencing within the front setback would be entirely alien and out of character with the existing streetscape, particularly given the established 12 to 14 m building line, and that impact was sufficient on first principles to warrant refusal of the development application.

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed.' 'The development application for the dual occupancy development is determined by refusal for development consent.' 'The exhibits are returned.']