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.
