Jackson Teece Chesternan Willis v Waverley Council [2006] NSWLEC 460

Jackson Teece Chesternan Willis v Waverley Council [2006] NSWLEC 460

Although the proposal achieved the objectives of the height control and was of high architectural standard, the nil setback to Wairoa Avenue was not justified and the combined non-compliance with density, site coverage, unencumbered area and landscaping controls produced a development that was too big for its site and context. The low level of solar access to living areas was also not justified by the site's constraints. The proposal therefore failed to satisfy the relevant planning controls and consent should be refused.

Jurisdiction
Australia
Judgment Date
25 July 2006
Procedural Posture
Appeal Against Deemed Refusal of Development Application DA 652/2005 for a Mixed Use Residential/retail Development / Judgment After Hearing
Outcome
Appeal dismissed and development consent refused.
Legal Topics
['development Consent' 'deemed Refusal Appeal' 'mixed Use Residential/retail Development' 'development Control Plan Compliance' 'building Envelope, Height, Setbacks and Density' 'urban Context and Streetscape' 'internal Amenity, Solar Access and Daylight' 'car Park Entry' 'sepp 65 Design Quality']
['environmental Planning and Assessment' 'land Use Planning'] ['development Consent' 'deemed Refusal Appeal' 'mixed Use Residential/retail Development' 'development Control Plan Compliance' 'building Envelope, Height, Setbacks and Density' 'urban Context and Streetscape' 'internal Amenity, Solar Access and Daylight' 'car Park Entry' 'sepp 65 Design Quality']

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Procedural Posture

Appeal Against Deemed Refusal of Development Application DA 652/2005 for a Mixed Use Residential/retail Development / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the proposal is consistent with the existing and future context of the area' 'Whether the proposal provides adequate internal amenity' 'Whether non-compliance with numerical controls in Waverley Development Control Plan No 1 – Multi Unit Housing was acceptable because the proposal met the objectives of those controls' 'Whether the proposed nil setback to Wairoa Avenue, site coverage, density and landscaping were acceptable' 'Whether solar access and daylight to living areas were adequate']

Ratio Decidendi

Although the proposal achieved the objectives of the height control and was of high architectural standard, the nil setback to Wairoa Avenue was not justified and the combined non-compliance with density, site coverage, unencumbered area and landscaping controls produced a development that was too big for its site and context. The low level of solar access to living areas was also not justified by the site's constraints. The proposal therefore failed to satisfy the relevant planning controls and consent should be refused.

Court Disposition

Appeal dismissed and development consent refused.

Orders

  • ['The appeal is dismissed.' 'The development application for a mixed use residential/retail development at 30A Hastings Parade, Bondi Beach, is refused.' 'The exhibits may be returned.']