Celik v Bayside Council [2018] NSWLEC 1124

Celik v Bayside Council [2018] NSWLEC 1124

The applicant did not satisfy the tests in cl 4.6 of the Rockdale Local Environmental Plan 2011. There was insufficient evidence to verify the variation sought or demonstrate consistency with objectives (b), (c), and (d) of the building height standard. The adverse impacts on character, amenity, transition to adjoining land uses, and uncertainties as to solar access meant the clause 4.6 variation request could not be upheld. Compliance with the standard was not shown to be unreasonable or unnecessary. Without satisfying cl 4.6, the court had no power to grant consent, and the appeal was dismissed.

Parties
Applicant: Kenedi Celik; Respondent: Bayside Council
Jurisdiction
Australia
Judgment Date
05 March 2018
Procedural Posture
Development Appeal (class 1) / Judgment After Hearing
Outcome
Appeal dismissed; development application refused
Legal Topics
Development Standards, Building Height, Local Environmental Plan, Clause 4.6 Variations, Dual Occupancy, Residential Zoning
Environmental Law Planning Law Development Standards Building Height Local Environmental Plan Clause 4.6 Variations Dual Occupancy Residential Zoning

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Parties

Kenedi Celik

Applicant

Bayside Council

Respondent

Procedural Posture

Development Appeal (class 1) / Judgment After Hearing

Legal Issues

  1. 1 Whether the requested variation to the maximum height control under cl 4.6 of the Rockdale Local Environmental Plan 2011 should be upheld
  2. 2 Whether, on the merits, the development application warrants approval

Ratio Decidendi

The applicant did not satisfy the tests in cl 4.6 of the Rockdale Local Environmental Plan 2011. There was insufficient evidence to verify the variation sought or demonstrate consistency with objectives (b), (c), and (d) of the building height standard. The adverse impacts on character, amenity, transition to adjoining land uses, and uncertainties as to solar access meant the clause 4.6 variation request could not be upheld. Compliance with the standard was not shown to be unreasonable or unnecessary. Without satisfying cl 4.6, the court had no power to grant consent, and the appeal was dismissed.

Court Disposition

Appeal dismissed; development application refused

Orders

  • The applicant is granted leave to rely on amended plans
  • No order as to costs