Levy v Waverley Council [2023] NSWLEC 1229

Levy v Waverley Council [2023] NSWLEC 1229

The Court was satisfied the applicant's written request adequately addressed clause 4.6(3) of the LEP 2012 by demonstrating the FSR objectives were met despite the excess, supported by planning and site context grounds. As the proposal was also consistent with the objectives of the standard and the R2 zone, and public interest requirements were met, development consent was lawfully granted subject to agreed conditions.

Parties
Applicant: Anne Levy; Respondent: Waverley Council
Jurisdiction
Australia
Judgment Date
16 May 2023
Procedural Posture
Appeal (class 1 Merit Appeal Against Refusal of Development Application) / Final Orders Following Conciliation Conference
Outcome
Appeal upheld; development consent granted subject to conditions; costs for amendment awarded to respondent
Legal Topics
Development Application, Floor Space Ratio Variation, Clause 4.6 Variation, Dual Occupancy, Strata Subdivision
Planning and Environment Law Development Application Floor Space Ratio Variation Clause 4.6 Variation Dual Occupancy Strata Subdivision

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Parties

Anne Levy

Applicant

Waverley Council

Respondent

Procedural Posture

Appeal (class 1 Merit Appeal Against Refusal of Development Application) / Final Orders Following Conciliation Conference

Legal Issues

  1. 1 Whether to grant development consent to a proposal that contravenes the floor space ratio development standard under Waverley LEP 2012 via clause 4.6 variation
  2. 2 Whether the applicant's clause 4.6 written request adequately addresses required matters
  3. 3 Whether the proposed development is consistent with the objectives of the FSR standard and the R2 zoning

Ratio Decidendi

The Court was satisfied the applicant's written request adequately addressed clause 4.6(3) of the LEP 2012 by demonstrating the FSR objectives were met despite the excess, supported by planning and site context grounds. As the proposal was also consistent with the objectives of the standard and the R2 zone, and public interest requirements were met, development consent was lawfully granted subject to agreed conditions.

Court Disposition

Appeal upheld; development consent granted subject to conditions; costs for amendment awarded to respondent

Orders

  • The Applicant is granted leave to amend the application, to rely on amended plans.
  • The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application, as agreed or assessed, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.