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The Owners Strata Plan No 855 v Gosford City Council.

Pays/Territoire
Australie
Type de cour
Autres
Date
Fév 11, 2011
Source
UNEP, InforMEA
Nom du tribunal
Land and Environment Court of New South Wales
Juge
Craig.
Numéro de référence
[2011] NSWLEC 9
Langue
Anglais
Sujet
Questions juridiques, Terre et sols
Mot clé
Planification territoriale Responsabilité/indemnisation
Résumé
The applicants sought development consent to demolish an existing residential flat building and redevelop the site by the erection of a new residential flat building. The existing building was constructed in 1955. The proposed new residential flat building was to be three levels of ‘stepped’ design containing six residential units. The application was refused by the Respondent Council. The applicant appealed pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (“EP&A Act”). One issue in the appeal was whether the present use of the land was an “existing use” as defined in s 106 of the EP&A Act. The land was zoned Residential 2(a) under the Gosford Planning Scheme Ordinance which prohibited development for the purpose of residential flat building. Despite varying its position on this issue over the course of the hearing, the Council ultimately conceded, on the fourth day of hearing when final submissions were due to commence, that the present use of the land was an “existing use” for the entire lot and therefore residential flat building was permissible with consent. The issues were (1) whether the character of the proposed development was appropriate when regard was had to the character of existing and likely future development in the vicinity of the site; (2) whether the bulk and scale of the proposed development was appropriate; (3) whether the proposed development would unreasonably impose upon amenity within neighbouring residential properties; and (4) costs. The Judge allowed the appeal and held: (1) the character of the proposed development was found to be appropriate when considering the existing character and likely future development in the vicinity of the site. The “desired character” of the area was described in the Council’s Development Control Plan 159 (Character) Amendment One (“DCP 159”) at Schedule 2 and was characterised as “medium density residential hillsides.” While the proposed development was different in design and size to other buildings in the area, differentiation did not equate to inimical or incompatible development: at [46]; (2) the bulk and scale of the proposed development was found to be appropriate. The size and design of the building was criticised for its “horizontal continuity of form.” However, the proposal clearly incorporated the elements necessary for compliance with DCP 159 which allowed for that continuity to be broken by diverse architectural layout and variations along the façade of the building: at [55]; (3) the proposed development would not unreasonably impose upon amenity within neighbouring residential properties. It was found that the use of the two lap pools attached to the upper level apartments would be of minimal impact as they were surrounded by walls on all sides and separated by significant distances from neighbouring residences: at [57]–[58]; and (4) in the context of the Council’s changing position on existing use before and during the hearing, it was fair and reasonable in the circumstances that the respondents pay a proportion of the costs incurred by the applicant in the appeal. A fair and reasonable proportion of costs was held to be 15%: at [79]–[81].
Texte intégral
COU-156805.pdf