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Planning and Environmental Court Appeal Victory - 3 Storey Dwelling Houses

Lee Morrison - Tuesday, June 18, 2019

A Planning & Environment Court Appeal was lodged by The Planning Place against Council’s refusal of an application involving two new Dwelling Houses, of 3 storeys (plus basement) in height, in Rupert St, Windsor. Council refused the application primarily on the basis of the height of the Dwellings not being consistent with the bulk and scale of other dwellings within the street and local area. 

The Court granted the approval, with Judge Kefford, stating that the word ‘consistent’ allows for some elasticity, with the relevant Performance Outcomes of the Planning Scheme relating to building height not calling for a purely numerical or quantitative approach. Judge Kefford stated that there was no prevailing height of buildings in the immediate vicinity of the site. The dwellings were considered to be consistent and compatible with a number of  nearby and adjoining dwellings in terms of the height, but also in terms of the existing setting and context.  Features of the proposed design of the dwellings also contributed to the consistency of the building height. 
The favourable judgement demonstrates that Council’s dogmatic and rigid approach to building height is not the intent of the Planning Scheme, and that building design, and surrounding context is of significant importance.  Council does not always appropriately follow the provisions of their Planning Scheme, and hence taking the matter to Court is the appropriate response to obtain a favourable outcome. It is important to note that not all appeals proceed to trial, and in the majority of occasions, an appeal can be successfully resolved with negotiations prior to a trial being necessary.

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Ian Adams
Principal Planner

Bachelor of Urban
and Regional Planning
Graduate Diploma of Management


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