Orth Constructions v Hornsby Shire Council [2005] NSWLEC 251

Land and Environment Court of New South Wales

CITATION : Orth Constructions v Hornsby Shire Council [2005] NSWLEC 251

APPLICANT Orth Constructions

PARTIES : RESPONDENT Hornsby Shire Council

FILE NUMBER(S) : 11290 of 2004 and ; 10017 of 2005

CORAM: Hussey C

KEY ISSUES: Subdivision :- Section 96 modification - delete height restriction conditions - visual impact - character of the proposal - scenic quality - loss of view - public interest -privacy - height element

Environmental Planning and Assessment Act LEGISLATION CITED: Brooklyn Development Control Plan

Moss v Kiama Municipal Council NSWLEC 165; CASES CITED: Parrott v Kiama Municipal Council NSWLEC 77 revised 16/3/2004; Tenacity Consulting v Warringah Council NSWLEC 140

DATES OF HEARING: 03/05/2005

DATE OF JUDGMENT: 05/02/2005

APPLICANT Dr S Berveling, SC

LEGAL REPRESENTATIVES: RESPONDENT Mr T Pickup, solicitor SOLICITORS Storey & Gough

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hussey C

3 May 2005

11290 of 2004 &10017 of 2005 Orth Constructions v Hornsby Shire Council

JUDGMENT

1. These proceedings involve the following two appeals arising out of a 4 lot subdivision development of a property at 29 and 43 Brooklyn Road, Brooklyn. They particularly relate to a dwelling house application on the newly created Lot 4.

2. Firstly, Appeal No. 10017 of 2005 concerns council's refusal of a s 96 modification to Condition 4 of the subdivision consent, for its deletion. The original Condition 4 stated: Maintain the existing low density character of the area and privacy, future dwellings proposed for Lots 1, 2 and 4 shall observe the height element of the Dwelling House Development Control Plan requiring single storey development on battle axe lots. 3. On review this was replaced with the following: To maintain the existing low density character of the area and to protect the privacy and views of adjacent properties, future dwellings proposed for Lots 1, 2 and 4 are to be of single storey. 4. Then appeal No. 11290 of 2004 is against council's refusal of a development application for a two storey dwelling on this Lot 4.