Kimberley Co Pty Ltd v Waverley Council [2021] NSWLEC 1771

Procedural Posture

Class 1 Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of Development Application DA 388/2020 / Principal Judgment After Hearing; Amended Development Application Considered and Appeal Dismissed

Legal Issues

1. 1 ["Whether the Applicant's cl 4.6 written request justified variation of the height of building development standard in cl 4.3 of the Waverley Local Environmental Plan 2012." "Whether the Applicant's cl 4.6 written request justified variation of the floor space ratio development standard in cl 4.4 of the Waverley Local Environmental Plan 2012." "Whether the Applicant's cl 4.6 written request justified variation of the minimum site size development standard in cl 40(2) of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004." 'Whether the site size calculation for SEPP Seniors should exclude the part of the land zoned RE1 Public Recreation.' 'Whether the proposal caused unacceptable view impacts to 25 Kimberley Street and overshadowing impacts to 31 Kimberley Street.' 'Whether the application failed jurisdictional thresholds for development consent.']

Ratio Decidendi

The appeal was dismissed because the amended application exceeded the WLEP floor space ratio and height of building development standards, and the Applicant's cl 4.6 written requests for those contraventions failed. The FSR exceedance caused a net reduction in environmental amenity to 25 Kimberley Street through view impacts, and the height exceedance caused a net reduction in environmental amenity to 31 Kimberley Street through overshadowing. Although the cl 4.6 request for the SEPP Seniors minimum site size variation was accepted, failure of the FSR and height development standards meant the application failed critical jurisdictional thresholds and development consent could not be granted.

Court Disposition

Appeal dismissed.

Orders

• ["Pursuant to s 8.15(3) of the EPA Act, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Application, in the amount of $2,500 within 28 days of the date of these orders." 'The appeal is dismissed.' 'The exhibits, other than 5, 8, A, and D, are returned.']