Wardan Developments Pty Limited v Blacktown City Council [2003] NSWLEC 228

Wardan Developments Pty Limited v Blacktown City Council [2003] NSWLEC 228

The appeal was upheld because, although not all internal living spaces would receive adequate solar access, the orientation and density contemplated for the site meant overall solar access was satisfactory under s 79C and did not warrant refusal. The common open space provision was adequate because DCP1992 did not...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
08 October 2003
Procedural Posture
Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of a Development Application / Final Judgment on Appeal From Deemed Refusal
Outcome
Appeal upheld; development application approved subject to conditions.
Legal Topics
['residential Flat Building' 'solar Access' 'common Open Space' 'state Environmental Planning Policy No 65 Design Quality' 'blacktown Development Control Plan 1992' 'public Interest']
['planning and Environment Law' 'development Consent'] ['residential Flat Building' 'solar Access' 'common Open Space' 'state Environmental Planning Policy No 65 Design Quality' 'blacktown Development Control Plan 1992' 'public Interest']

Source-derived case record

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Procedural Posture

Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of a Development Application / Final Judgment on Appeal From Deemed Refusal

Legal Issues

  1. 1 ['Whether the proposed development should be approved despite alleged non-compliance with solar access provisions in cl 7.9 of Blacktown Development Control Plan 1992 Part C.' 'Whether the proposed development should be approved despite alleged non-compliance with common open space provisions in cl 7.11 of Blacktown Development Control Plan 1992 Part C.' 'Whether the proposal satisfied the design quality principles in State Environmental Planning Policy No 65, including context, scale, built form, density, landscape, amenity and aesthetics.' "Whether approval of the proposed development would be in the public interest having regard to objectors' concerns."]

Ratio Decidendi

The appeal was upheld because, although not all internal living spaces would receive adequate solar access, the orientation and density contemplated for the site meant overall solar access was satisfactory under s 79C and did not warrant refusal. The common open space provision was adequate because DCP1992 did not exclude rooftop common open space and, counting the whole rooftop garden and recreation area, more than 100% of the required common open space was provided; even if that interpretation were wrong, more than 80% was provided and nearby public open space was available. The proposal was permissible in the Residential 2(c) zone, met at least one zone objective, adequately addressed...

Court Disposition

Appeal upheld; development application approved subject to conditions.

Orders

  • ['The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.' 'Development application No 02/4805 lodged with the respondent council on 22 October 2002 to erect a four-storey residential flat building comprising thirty-four (34) dwellings with basement car parking and rooftop recreation...