Gabeti Pty Ltd v Bayside Council [2019] NSWLEC 1471

Gabeti Pty Ltd v Bayside Council [2019] NSWLEC 1471

Consent was refused because the evidence did not permit a final assessment of the incremental societal risk of the proposed residential intensification without updated SHERPA modelling, leaving the Court unsatisfied that the development was consistent with relevant EPA Act objects or in the public interest. Independently, the proposal was unsuitable for the site because its bulk, scale, setbacks, roof form, landscaping and 40m building length produced an overdevelopment out of context with the surrounding single-storey development and failed relevant DCP controls.

Jurisdiction
Australia
Judgment Date
02 October 2019
Procedural Posture
Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of a Development Application / Principal Judgment After Hearing
Outcome
Appeal dismissed; development application refused consent.
Legal Topics
['development Application for Multi Dwelling Housing' 'residential Intensification Near Botany Industrial Park and Dangerous Goods Transport Route' 'societal Risk and Toxic Injury Risk' 'site Suitability' 'overdevelopment, Streetscape, Setbacks and Landscaping' 'public Interest']
['planning and Environment Law' 'development Control' 'land Use Safety Planning'] ['development Application for Multi Dwelling Housing' 'residential Intensification Near Botany Industrial Park and Dangerous Goods Transport Route' 'societal Risk and Toxic Injury Risk' 'site Suitability' 'overdevelopment, Streetscape, Setbacks and Landscaping' 'public Interest']

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Procedural Posture

Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of a Development Application / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the Court should grant consent to residential intensification of the site having regard to societal risk from the Botany Industrial Park and dangerous goods transport route.' 'Whether the risk provisions in Part 8 of the Botany Bay Development Control Plan 2013 were inconsistent with or incompatible with the Botany Bay Local Environmental Plan 2013 and should be disregarded under s 3.43(5) of the Environmental Planning and Assessment Act 1979.' 'Whether sufficient modelling and information existed to assess the incremental societal risk of the proposed development.' 'Whether the proposal was an overdevelopment and unsuitable having regard to local character, streetscape, setbacks, landscaping, roof form, building length and site constraints.' 'Whether approval of the development application would be in the public interest under s 4.15(1)(e) of the Environmental Planning and Assessment Act 1979.']

Ratio Decidendi

Consent was refused because the evidence did not permit a final assessment of the incremental societal risk of the proposed residential intensification without updated SHERPA modelling, leaving the Court unsatisfied that the development was consistent with relevant EPA Act objects or in the public interest. Independently, the proposal was unsuitable for the site because its bulk, scale, setbacks, roof form, landscaping and 40m building length produced an overdevelopment out of context with the surrounding single-storey development and failed relevant DCP controls.

Court Disposition

Appeal dismissed; development application refused consent.

Orders

  • ['The appeal dismissed.' 'The development application is refused consent.' 'The exhibits are returned apart from Exhibits A, C and 4.']