Brunswick Project Developments Pty Ltd v City of Canada Bay [2016] NSWLEC 1531

Brunswick Project Developments Pty Ltd v City of Canada Bay [2016] NSWLEC 1531

The Court found that although the proposed development was consistent with the B1 zone objectives, it was inconsistent with objectives (a) and (b) of the height standard because the height breach and roof form did not minimise visual impact and were not compatible with the desired future character established by the applicable controls. The cl 4.6 request contained errors and relied on features not present in the plans before the Court, and the applicant failed to demonstrate sufficient environmental planning grounds or that compliance with the height standard was unreasonable or unnecessary. Because cl 4.6 was a jurisdictional precondition, the Court had no power to grant consent to the...

Jurisdiction
Australia
Judgment Date
11 November 2016
Procedural Posture
Class 1 Development Appeal Under S 97(1)(a) of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Hearing After Mandatory Conciliation Under S 34 of the Land and Environment Court Act 1979 Was Terminated and Leave Was Granted to Rely on Amended Architectural Plans
Outcome
Appeal dismissed; development application refused.
Legal Topics
['development Appeal' 'clause 4.6 Variation' 'building Height Standard' 'sepp 65 Design Principles' 'residential Amenity' 'streetscape Compatibility' 'shop Top Housing' 'remediation of Land' 'vehicular Access and Sight Lines']
['planning and Environment Law' 'development Control'] ['development Appeal' 'clause 4.6 Variation' 'building Height Standard' 'sepp 65 Design Principles' 'residential Amenity' 'streetscape Compatibility' 'shop Top Housing' 'remediation of Land' 'vehicular Access and Sight Lines']

Case Brief

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Procedural Posture

Class 1 Development Appeal Under S 97(1)(a) of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Hearing After Mandatory Conciliation Under S 34 of the Land and Environment Court Act 1979 Was Terminated and Leave Was Granted to Rely on Amended Architectural Plans

Legal Issues

  1. 1 ['Whether the written request under cl 4.6 of Canada Bay Local Environmental Plan 2013 adequately justified contravention of the building height standard in cl 4.3.' 'Whether the proposed development was consistent with the objectives of the B1 Neighbourhood Centre zone.' 'Whether the proposed development was consistent with the objectives of the height standard, including compatibility with desired future character and minimisation of visual impact, privacy and solar access impacts.' 'Whether sufficient environmental planning grounds justified contravening the height standard.' 'Whether an amber light approach should be taken to alternative plans tendered during the proceedings.']

Ratio Decidendi

The Court found that although the proposed development was consistent with the B1 zone objectives, it was inconsistent with objectives (a) and (b) of the height standard because the height breach and roof form did not minimise visual impact and were not compatible with the desired future character established by the applicable controls. The cl 4.6 request contained errors and relied on features not present in the plans before the Court, and the applicant failed to demonstrate sufficient environmental planning grounds or that compliance with the height standard was unreasonable or unnecessary. Because cl 4.6 was a jurisdictional precondition, the Court had no power to grant consent to the...

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed.' 'Development application DA/2015/0014 for the demolition of existing structures and construction of a four storey mixed use development and associated basement parking at 375A and 377 Concord Road, Concord West is refused for the reasons detailed in this judgement.' 'The exhibits are...