Bardari Pty Ltd ATF the BHK Trust v Waverley Council [2018] NSWLEC 1363

Bardari Pty Ltd ATF the BHK Trust v Waverley Council [2018] NSWLEC 1363

The amended proposal, together with agreed conditions, satisfactorily addressed Council's planning, urban design and heritage concerns and the objectors' amenity and heritage issues. The minor height exceedance of a maximum 292mm was acceptable because the Clause 4.6 written request met the required criteria and the proposal was consistent with the height standard objectives and B4 Mixed Use zone objectives. Consent could therefore be granted to the amended development application subject to conditions.

Jurisdiction
Australia
Judgment Date
17 July 2018
Procedural Posture
Class 1 Development Application Appeal / Appeal Against Deemed Refusal of Development Application Da13/2017
Outcome
Appeal upheld and development application approved subject to conditions.
Legal Topics
['development Application' 'mixed Use Development' 'building Height Variation' 'amenity Impacts' 'view Loss' 'privacy' 'heritage Conservation']
['planning and Development' 'environmental Law' 'heritage'] ['development Application' 'mixed Use Development' 'building Height Variation' 'amenity Impacts' 'view Loss' 'privacy' 'heritage Conservation']

Case Brief

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Procedural Posture

Class 1 Development Application Appeal / Appeal Against Deemed Refusal of Development Application Da13/2017

Legal Issues

  1. 1 ['Whether the Clause 4.6 written request to vary the 15m building height control in Waverley Local Environmental Plan 2012 should be upheld.' 'Whether the amended mixed use development would have unacceptable amenity impacts on neighbouring properties, including privacy, natural light and view impacts.' 'Whether demolition of the existing building and construction of the proposed modern building would unreasonably affect local heritage values or the conservation area.' 'Whether development application DA13/2017 should be approved subject to agreed conditions.']

Ratio Decidendi

The amended proposal, together with agreed conditions, satisfactorily addressed Council's planning, urban design and heritage concerns and the objectors' amenity and heritage issues. The minor height exceedance of a maximum 292mm was acceptable because the Clause 4.6 written request met the required criteria and the proposal was consistent with the height standard objectives and B4 Mixed Use zone objectives. Consent could therefore be granted to the amended development application subject to conditions.

Court Disposition

Appeal upheld and development application approved subject to conditions.

Orders

  • ['The Clause 4.6 written request to vary the height control in Waverly Local Environmental Plan 2012 is upheld.' 'The appeal is upheld.' 'Development application DA13/2017, for demolition of existing structures and the construction of a mixed use building over five levels at 1 Sir Thomas Mitchell Road, Bondi Beach...