Blanc Black Projects Pty Limited v Willoughby City Council [2022] NSWLEC 1135

Blanc Black Projects Pty Limited v Willoughby City Council [2022] NSWLEC 1135

The Court upheld the appeal because the statutory preconditions to consent were satisfied and, on the merits, the minor height exceedance was justified under cl 4.6 and remained compatible with the streetscape and R3 zone objectives; the development was not overdevelopment despite DCP departures; amended materials could be required by condition; flooding risk was adequately addressed by the evidence and ordinary consent conditions; and approval would not create an undesirable precedent. The proposed affordable housing monetary contribution could not be imposed because there was no evidence that the development would have a material impact on the existing or likely future mix of affordable...

Jurisdiction
Australia
Judgment Date
17 March 2022
Procedural Posture
Class 1 Development Application Appeal / Final Hearing and Determination of Development Application
Outcome
Appeal upheld; development consent granted subject to conditions in Annexure A.
Legal Topics
['development Application for Residential Flat Building' 'clause 4.6 Variation to Height Development Standard' 'bulk and Scale and Overdevelopment' 'flood Planning Controls' 'urban Design Materials and Finishes' 'affordable Housing Contribution Condition' 'development Consent Conditions']
['environmental Planning and Development' 'land and Environment' 'local Government'] ['development Application for Residential Flat Building' 'clause 4.6 Variation to Height Development Standard' 'bulk and Scale and Overdevelopment' 'flood Planning Controls' 'urban Design Materials and Finishes' 'affordable Housing Contribution Condition' 'development Consent Conditions']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 1 Development Application Appeal / Final Hearing and Determination of Development Application

Legal Issues

  1. 1 ['Whether the written request under cl 4.6 of the Willoughby Local Environmental Plan 2012 justified contravention of the 12 m height development standard in cl 4.3.' 'Whether the proposed residential flat building was an unreasonable overdevelopment of the Site by reason of height, site coverage and front setback.' 'Whether the proposed external materials, finishes and colours were appropriate in the bushland setting.' 'Whether the Proposed Development satisfied cl 5.21 of the Willoughby Local Environmental Plan 2012 concerning flood planning and whether a deferred commencement flood condition was required.' 'Whether approval would create an undesirable precedent for departures from height and setback controls.' 'Whether a condition requiring a monetary contribution for affordable housing under s 7.32 of the Environmental Planning and Assessment Act 1979 and cl 6.8 of the Willoughby Local Environmental Plan 2012 could lawfully and reasonably be imposed.']

Ratio Decidendi

The Court upheld the appeal because the statutory preconditions to consent were satisfied and, on the merits, the minor height exceedance was justified under cl 4.6 and remained compatible with the streetscape and R3 zone objectives; the development was not overdevelopment despite DCP departures; amended materials could be required by condition; flooding risk was adequately addressed by the evidence and ordinary consent conditions; and approval would not create an undesirable precedent. The proposed affordable housing monetary contribution could not be imposed because there was no evidence that the development would have a material impact on the existing or likely future mix of affordable...

Court Disposition

Appeal upheld; development consent granted subject to conditions in Annexure A.

Orders

  • ['The appeal is upheld.' 'Development application no DA-2021/90 (as amended on 12 October 2021) for the demolition of existing buildings and construction of a new residential flat building comprising 11 apartments over basement car parking on the land described as Lots 1 and 2 DP 554171 and known as 58-60 Eastern...