Chen v Cumberland Council [2019] NSWLEC 1375

Chen v Cumberland Council [2019] NSWLEC 1375

Although the proposal complied with the applicable height and floor space ratio controls and parking was not treated as a determinative ground of refusal, the development was not harmonious with the local character in its visual presentation and, more importantly, would cause unreasonable visual and acoustic privacy impacts to the adjoining apartments at 3-5 Kane Street because the three levels of open walkways were close to and oriented toward their living areas and could not be adequately mitigated by the proposed screening. Consent was therefore refused and the appeal dismissed.

Jurisdiction
Australia
Judgment Date
09 August 2019
Procedural Posture
Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of a Development Application / Final Hearing and Determination
Outcome
Appeal dismissed; development consent refused.
Legal Topics
['boarding House Development' 'character of Local Area' 'visual and Acoustic Privacy' 'parking' 'landscaping' 'amenity']
['planning and Environment' 'development Consent'] ['boarding House Development' 'character of Local Area' 'visual and Acoustic Privacy' 'parking' 'landscaping' 'amenity']

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Procedural Posture

Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of a Development Application / Final Hearing and Determination

Legal Issues

  1. 1 ['Whether the proposed boarding house was visually compatible with the character of the local area under cl 30A of State Environmental Planning Policy (Affordable Rental Housing) 2009.' "Whether the proposal's physical impacts, particularly visual and acoustic privacy impacts on adjoining apartments at 3-5 Kane Street, were acceptable." 'Whether the proposed parking, including car stackers, satisfied the relevant non-discretionary parking standard.' "Whether the site's width, frontage, site coverage and possible amalgamation issues demonstrated that the site was constrained for the proposed development."]

Ratio Decidendi

Although the proposal complied with the applicable height and floor space ratio controls and parking was not treated as a determinative ground of refusal, the development was not harmonious with the local character in its visual presentation and, more importantly, would cause unreasonable visual and acoustic privacy impacts to the adjoining apartments at 3-5 Kane Street because the three levels of open walkways were close to and oriented toward their living areas and could not be adequately mitigated by the proposed screening. Consent was therefore refused and the appeal dismissed.

Court Disposition

Appeal dismissed; development consent refused.

Orders

  • ['Leave is granted to rely on amended plans (Ex D) with no order as to costs.' 'The appeal is dismissed.' 'Development Application No DA394/2017 for a four storey boarding house at Lot A in DP 344516 known as 1 Kane Street, Guilford is refused consent.' 'The exhibits, other than Exhibits 2, 6, B, and D, are returned.']