Hyside Projects Subthree Pty Ltd v City of Canada Bay Council [2022] NSWLEC 1062

Hyside Projects Subthree Pty Ltd v City of Canada Bay Council [2022] NSWLEC 1062

The written request establishes that compliance with the 31m maximum building height standard is unreasonable or unnecessary, as the objectives are achieved notwithstanding minor non-compliances; sufficient environmental planning grounds are provided; refusal based on amalgamation pattern is not justified as council actions rendered compliance impossible; the development is consistent with design principles and conditions of consent can address outstanding matters. Development consent should be granted, subject to final conditions of consent.

Jurisdiction
Australia
Judgment Date
11 February 2022
Procedural Posture
Development Appeal / Final Judgment, Directions, Pending Final Consent Orders
Outcome
Appeal upheld; development consent to be granted subject to conditions
Legal Topics
['development Consent' 'building Height Standards' 'bulk and Scale' 'site Amalgamation' 'apartment Design Principles' 'conditions of Consent']
['planning and Environment'] ['development Consent' 'building Height Standards' 'bulk and Scale' 'site Amalgamation' 'apartment Design Principles' 'conditions of Consent']

Case Brief

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Procedural Posture

Development Appeal / Final Judgment, Directions, Pending Final Consent Orders

Legal Issues

  1. 1 ["Whether the applicant's written request under cl 4.6 satisfactorily justifies contravention of the maximum building height standard" 'Whether excessive bulk and scale and non-conformity with amalgamation pattern prevents the grant of consent' 'Whether the design is consistent with Apartment Design Guide and SEPP 65 Design Principles' 'Whether conditions of consent should address roads, dedication, and other items']

Ratio Decidendi

The written request establishes that compliance with the 31m maximum building height standard is unreasonable or unnecessary, as the objectives are achieved notwithstanding minor non-compliances; sufficient environmental planning grounds are provided; refusal based on amalgamation pattern is not justified as council actions rendered compliance impossible; the development is consistent with design principles and conditions of consent can address outstanding matters. Development consent should be granted, subject to final conditions of consent.

Court Disposition

Appeal upheld; development consent to be granted subject to conditions

Orders

  • ['Respondent to file agreed conditions of consent reflecting judgment conclusions by noon 4 March 2022' 'Matter listed for mention on 11 March 2022 at 4:15pm' 'If direction (1) complied with, an order for development consent will be made and the mention vacated' "Liberty to restore on three days' notice granted to...