Dogild Pty Ltd v Northern Beaches Council [2016] NSWLEC 1322

Dogild Pty Ltd v Northern Beaches Council [2016] NSWLEC 1322

The modification was refused because the applicant did not make a satisfactory case for breaching the 13m building height standard. Although increased ceiling heights would improve internal amenity, that outcome could be achieved through an alternative complying design. The proposed additional height would make the non-compliant fifth storey more obvious, would not demonstrate reasonable compatibility with the desired future character of The Strand, would increase visual impacts from the public domain, would further reduce solar amenity to adjoining units, and would create an undesirable precedent for nearby sites. Adherence to the height standard better served the public interest.

Jurisdiction
Australia
Judgment Date
09 August 2016
Procedural Posture
Class 1 Appeal Against Refusal of a Modification Application / Principal Judgment After Hearing
Outcome
Appeal dismissed; modification consent refused.
Legal Topics
['building Height Development Standard' 'sepp 65 and Apartment Design Guide Ceiling Heights' 'urban Design and Streetscape Impacts' 'overshadowing and Solar Access' 'public Interest and Precedent Effect']
['planning and Environment Law' 'development Consent Modification'] ['building Height Development Standard' 'sepp 65 and Apartment Design Guide Ceiling Heights' 'urban Design and Streetscape Impacts' 'overshadowing and Solar Access' 'public Interest and Precedent Effect']

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Procedural Posture

Class 1 Appeal Against Refusal of a Modification Application / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether consent should be granted to modify Development Consent DA 2003/1381 to increase the building height and alter the approved mixed use development.' 'Whether the proposed increase in height above the 13m building height development standard was justified by improved internal amenity from increased floor to ceiling heights.' 'Whether the modification would be compatible with the desired future character and streetscape of The Strand, Dee Why.' 'Whether the modification would unreasonably increase visual impacts and loss of solar access to adjoining properties.' 'Whether approval would create an undesirable precedent for nearby sites.']

Ratio Decidendi

The modification was refused because the applicant did not make a satisfactory case for breaching the 13m building height standard. Although increased ceiling heights would improve internal amenity, that outcome could be achieved through an alternative complying design. The proposed additional height would make the non-compliant fifth storey more obvious, would not demonstrate reasonable compatibility with the desired future character of The Strand, would increase visual impacts from the public domain, would further reduce solar amenity to adjoining units, and would create an undesirable precedent for nearby sites. Adherence to the height standard better served the public interest.

Court Disposition

Appeal dismissed; modification consent refused.

Orders

  • ['The appeal is dismissed.' 'Consent for application (Mod2015/0178) to modify Development Consent DA 2003/1381 in respect of increased building height and building alterations for the mixed use development at Lot 51 DP 789550, 9 The Strand DEE WHY 2099 is refused.' 'The exhibits may be returned except for 1, A, B, C...