31 Blenheim Street Pty Ltd v Waverley Council [2012] NSWLEC 1050

31 Blenheim Street Pty Ltd v Waverley Council [2012] NSWLEC 1050

The deferred commencement conditions imposed by the Council requiring further reduction in height, added setbacks, deletion of the upper floor balcony, and retention of the facade are not all warranted. It is appropriate instead to require a setback of 1.35m to Isabella Street, reduce building height by 500mm at the southern boundary, permit a balcony at the upper level with lightweight balustrading, and require other amendments as specified to provide adequate solar access and appropriate streetscape outcomes. Amended plans reflecting these changes must be filed and served, with amended conditions to be provided by the Council.

Jurisdiction
Australia
Judgment Date
06 March 2012
Procedural Posture
Development Application Appeal (class 1) / Judgment After Conciliation Conference Under S 34 AA Land and Environment Court Act 1979
Outcome
Applicant to file and serve amended plans to reflect the findings; Council to provide amended conditions; final orders to be made in chambers.
Legal Topics
['development Application' 'deferred Commencement Consent' 'heritage Conservation' 'solar Access' 'amenity' 'streetscape' 'setbacks' 'building Height']
['planning Law' 'environmental Law'] ['development Application' 'deferred Commencement Consent' 'heritage Conservation' 'solar Access' 'amenity' 'streetscape' 'setbacks' 'building Height']

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Procedural Posture

Development Application Appeal (class 1) / Judgment After Conciliation Conference Under S 34 AA Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether the deferred commencement conditions imposed by the Council are reasonable and necessary' 'Whether amendments to building height and setbacks provide adequate solar access and streetscape outcomes' 'Whether a balcony at upper floor level is appropriate']

Ratio Decidendi

The deferred commencement conditions imposed by the Council requiring further reduction in height, added setbacks, deletion of the upper floor balcony, and retention of the facade are not all warranted. It is appropriate instead to require a setback of 1.35m to Isabella Street, reduce building height by 500mm at the southern boundary, permit a balcony at the upper level with lightweight balustrading, and require other amendments as specified to provide adequate solar access and appropriate streetscape outcomes. Amended plans reflecting these changes must be filed and served, with amended conditions to be provided by the Council.

Court Disposition

Applicant to file and serve amended plans to reflect the findings; Council to provide amended conditions; final orders to be made in chambers.

Orders

  • ['Applicant to prepare and serve amended plans by 4pm 8 March 2012 reflecting changes to setbacks, building heights, balcony configuration, and other matters set out in judgment.' 'Council to provide amended conditions of consent by 4pm 9 March 2012 to reflect the amended plans and matters outlined in judgment.'...