Benson & Partners Pty Limited v Woollahara Municipal Council [2009] NSWLEC 1435

Benson & Partners Pty Limited v Woollahara Municipal Council [2009] NSWLEC 1435

The proposal for a new study is inconsistent with the view sharing objectives and performance criteria in the Woollahra Residential Development Control Plan; it would cause a permanent loss of around 50% of the harbour view corridor of a neighboring property, an outcome not justified by the temporary nature of existing obstructions or the applicant's needs, and breaches applicable height and FSR standards.

Parties
Applicant: Benson & Partners Pty Limited; Respondent: Woollahara Municipal Council
Jurisdiction
Australia
Judgment Date
02 December 2009
Procedural Posture
Appeal / Judgment After Hearing
Outcome
appeal dismissed
Legal Topics
Development Application, Alterations and Additions, View Loss, Height and FSR Standards
Planning and Environment Development Application Alterations and Additions View Loss Height and FSR Standards

Case Brief

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Parties

Benson & Partners Pty Limited

Applicant

Woollahara Municipal Council

Respondent

Procedural Posture

Appeal / Judgment After Hearing

Legal Issues

  1. 1 Whether the proposed alterations and additions, specifically the new study, create unacceptable view loss from adjoining properties
  2. 2 Whether the proposal breaches development standards for height, FSR, and setback
  3. 3 Whether the proposal is consistent with the objectives and criteria relating to view sharing in the applicable development control plan

Ratio Decidendi

The proposal for a new study is inconsistent with the view sharing objectives and performance criteria in the Woollahra Residential Development Control Plan; it would cause a permanent loss of around 50% of the harbour view corridor of a neighboring property, an outcome not justified by the temporary nature of existing obstructions or the applicant's needs, and breaches applicable height and FSR standards.

Court Disposition

appeal dismissed

Orders

  • The appeal is dismissed.
  • Development Application 393/2001/1 for alterations and additions to Unit 4, 18 Ian Street, Rose Bay is refused.