Woodhouse & Danks Pty Ltd v Ku-ring-gai Council [2021] NSWLEC 1048

Woodhouse & Danks Pty Ltd v Ku-ring-gai Council [2021] NSWLEC 1048

The proposed boarding house was approved because the Court was satisfied that the applicable ARH SEPP, LEP and general DCP controls were met or did not require refusal, and there was no statutory requirement for a boarding house to comply with DCP controls for residential flat buildings. The existing local character...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
29 January 2021
Procedural Posture
Class 1 Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Application DA 185/19 for a Boarding House / Principal Judgment After Hearing
Outcome
Appeal upheld; Development Application DA 185/19 approved subject to conditions.
Legal Topics
['boarding House Development Application' 'compatibility With Character of Local Area' 'application of Residential Flat Building Development Controls' 'side Setbacks and Landscaping' 'neighbour Amenity Impacts Including Overshadowing' 'boarding Room Gross Floor Area' 'conditions of Consent']
['planning and Environment' 'development Consent' 'affordable Rental Housing'] ['boarding House Development Application' 'compatibility With Character of Local Area' 'application of Residential Flat Building Development Controls' 'side Setbacks and Landscaping' 'neighbour Amenity Impacts Including Overshadowing' 'boarding Room Gross Floor Area' 'conditions of Consent']

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Procedural Posture

Class 1 Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Application DA 185/19 for a Boarding House / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the proposed boarding house was compatible with the character of the local area for the purposes of cl 30A of State Environmental Planning Policy (Affordable Rental Housing) 2009.' 'Whether residential flat building controls in Part 7 of the Ku-ring-gai Development Control Plan should be applied to the proposed boarding house, particularly for side setbacks, site coverage and deep soil landscaping.' 'Whether the proposed development would cause unacceptable amenity impacts to neighbouring properties, including overshadowing of communal open space at 154 Pacific Highway.' 'Whether 9 disputed boarding rooms satisfied the accommodation size standard in cl 29(2)(f) of State Environmental Planning Policy (Affordable Rental Housing) 2009 and should be classified as single or double rooms.' 'Whether disputed conditions concerning dilapidation reports and public liability insurance for street tree works should be imposed.']

Ratio Decidendi

The proposed boarding house was approved because the Court was satisfied that the applicable ARH SEPP, LEP and general DCP controls were met or did not require refusal, and there was no statutory requirement for a boarding house to comply with DCP controls for residential flat buildings. The existing local character in the visual catchment was unlikely to change significantly, and the proposal maintained the rhythm of built form while improving the landscaped setting, so it was compatible with the character of the local area for cl 30A purposes. Amenity impacts, including noise, privacy and overshadowing, were acceptable or could be managed by conditions. Seven of the disputed rooms were...

Court Disposition

Appeal upheld; Development Application DA 185/19 approved subject to conditions.

Orders

  • ['Leave is granted to the applicant to rely upon amended plans.' 'The appeal is upheld.' 'Development Application DA 185/19 for demolition of existing structures and construction of a boarding house with associated works at 170 Pacific Highway, Roseville is approved subject to conditions, as outlined in Annexure A.'...