Cooking Master Pty Limited v Waverley Council [2014] NSWLEC 1192

Cooking Master Pty Limited v Waverley Council [2014] NSWLEC 1192

The amended proposal was acceptable because the expert evidence established that the increased setbacks, revised built form, privacy measures, landscaping and reduced FSR produced an appropriate response to SEPP 65, WLEP and WDCP controls; the cl. 4.6 request justified the FSR exceedence; impacts on adjoining amenity, view sharing, solar access, privacy, streetscape and public interest were not sufficient to warrant refusal; and the Court was satisfied after considering s 79C of the EPA Act that conditional consent should be granted.

Jurisdiction
Australia
Judgment Date
16 September 2014
Procedural Posture
Class 1 Development Appeal Against Deemed Refusal of Development Application No. 357/2013 / Final Judgment After Hearing and Site Inspection
Outcome
Appeal upheld; development consent granted subject to conditions.
Legal Topics
['residential Flat Building' 'floor Space Ratio Variation' 'sepp 65 Design Quality' 'streetscape and Character' 'view Sharing' 'solar Access and Overshadowing' 'privacy Impacts' 'site Isolation']
['planning and Environment Law' 'development Consent'] ['residential Flat Building' 'floor Space Ratio Variation' 'sepp 65 Design Quality' 'streetscape and Character' 'view Sharing' 'solar Access and Overshadowing' 'privacy Impacts' 'site Isolation']

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Procedural Posture

Class 1 Development Appeal Against Deemed Refusal of Development Application No. 357/2013 / Final Judgment After Hearing and Site Inspection

Legal Issues

  1. 1 ['Whether consent should be granted for demolition of existing dwellings and construction of a residential flat building with basement parking at 649-651 Old South Head Road, Rose Bay.' 'Whether the amended proposal was acceptable having regard to SEPP 65 design criteria, Waverley Local Environmental Plan 2012 and Waverley Development Control Plan 2012.' 'Whether the exceedence of the WLEP floor space ratio development standard should be accepted under cl. 4.6.' 'Whether the proposal caused unacceptable impacts on streetscape, character, privacy, views, visual bulk, solar access, site isolation, landscaping, amenity for future occupants or the public interest.']

Ratio Decidendi

The amended proposal was acceptable because the expert evidence established that the increased setbacks, revised built form, privacy measures, landscaping and reduced FSR produced an appropriate response to SEPP 65, WLEP and WDCP controls; the cl. 4.6 request justified the FSR exceedence; impacts on adjoining amenity, view sharing, solar access, privacy, streetscape and public interest were not sufficient to warrant refusal; and the Court was satisfied after considering s 79C of the EPA Act that conditional consent should be granted.

Court Disposition

Appeal upheld; development consent granted subject to conditions.

Orders

  • ['The appeal is upheld.' 'Consent is granted to Development Application DA357/2013 for the demolition of existing dwellings, construction of a residential flat building with basement parking on Lot 9 in DP9036 and Lot 10A in DP306529 otherwise known as 649-651 Old South Head Road, Rose Bay, subject to the conditions...