Arbib v Waverley Council [2018] NSWLEC 1475

Arbib v Waverley Council [2018] NSWLEC 1475

The appeal was dismissed and development application refused because the applicant did not adequately demonstrate that compliance with the FSR development standard was unnecessary or unreasonable, the proposal was not consistent with objectives (b), (c), and (d) of cl 4.4 of LEP 2012, there were insufficient environmental planning grounds for the FSR contravention, and the proposal was not in the public interest due to adverse amenity and view impacts and incompatibility with the desired future character of the locality.

Jurisdiction
Australia
Judgment Date
07 September 2018
Procedural Posture
Appeal Class 1 Development Application / Final Judgment Appeal Dismissed
Outcome
Appeal dismissed; development application refused.
Legal Topics
['development Application' 'floor Space Ratio (fsr) Standard' 'external Wall Height' 'waverley LEP 2012' 'waverley DCP 2012' 'amenity Impact' 'view Loss' 'clause 4.6 Variations']
['planning and Environment Law'] ['development Application' 'floor Space Ratio (fsr) Standard' 'external Wall Height' 'waverley LEP 2012' 'waverley DCP 2012' 'amenity Impact' 'view Loss' 'clause 4.6 Variations']

Case Brief

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Procedural Posture

Appeal Class 1 Development Application / Final Judgment Appeal Dismissed

Legal Issues

  1. 1 ['Whether the proposed development should be approved despite contravention of the floor space ratio development standard under Waverley LEP 2012' 'Whether the proposal complies with the maximum external wall height control in Waverley DCP 2012' 'Whether the development causes unacceptable amenity and view impacts' 'Whether there are sufficient environmental planning grounds to justify the exceedance of the FSR standard and whether approval is in the public interest']

Ratio Decidendi

The appeal was dismissed and development application refused because the applicant did not adequately demonstrate that compliance with the FSR development standard was unnecessary or unreasonable, the proposal was not consistent with objectives (b), (c), and (d) of cl 4.4 of LEP 2012, there were insufficient environmental planning grounds for the FSR contravention, and the proposal was not in the public interest due to adverse amenity and view impacts and incompatibility with the desired future character of the locality.

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed.' 'Development Application No. 569/2016 for alterations and additions to an existing residential flat building at 19 Dellview Street, Tamarama, is refused.' 'The exhibits, other than exhibits 1 and A, are returned.']