Hajek v Sutherland Shire Council [2021] NSWLEC 1538

Hajek v Sutherland Shire Council [2021] NSWLEC 1538

The written request for clause 4.6 variation did not demonstrate that compliance with the height standard was unreasonable or unnecessary in the circumstances, nor sufficient environmental planning grounds to justify contravening it, as the proposal failed to minimise view loss and the breach was not minor; therefore, consent could not be granted and the appeal was dismissed.

Parties
Applicant: Adam Hajek; Applicant: Lisa Hajek; Respondent: Sutherland Shire Council
Jurisdiction
Australia
Judgment Date
17 September 2021
Procedural Posture
Appeal / Final Judgment
Outcome
Appeal dismissed
Legal Topics
Development Application, Building Height, View Impact, Clause 4.6 Variation, Urban Design, Amenity
Planning Law Development Application Building Height View Impact Clause 4.6 Variation Urban Design Amenity

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Parties

Adam Hajek

Applicant

Lisa Hajek

Applicant

Sutherland Shire Council

Respondent

Procedural Posture

Appeal / Final Judgment

Legal Issues

  1. 1 Whether the proposed rooftop pergola complies with the building height development standard
  2. 2 Whether view loss caused by the development is reasonable and minimised
  3. 3 Whether sufficient environmental planning grounds exist to justify contravening the height standard under clause 4.6 of the LEP

Ratio Decidendi

The written request for clause 4.6 variation did not demonstrate that compliance with the height standard was unreasonable or unnecessary in the circumstances, nor sufficient environmental planning grounds to justify contravening it, as the proposal failed to minimise view loss and the breach was not minor; therefore, consent could not be granted and the appeal was dismissed.

Court Disposition

Appeal dismissed

Orders

  • The applicant is to pay the Council's costs thrown away in the amount of $2,000 in relation to the amendment of the application on 3 September 2021 pursuant to s8.15(3) Environmental Planning and Assessment Act 1979.
  • The appeal is dismissed.