Hansimikali v Bayside Council [2019] NSWLEC 1353

Hansimikali v Bayside Council [2019] NSWLEC 1353

The applicant's written request satisfactorily demonstrated that compliance with the 14m height of buildings development standard was unreasonable and unnecessary, as the objectives of the standard were achieved through design measures minimising amenity impacts and achieving a consistent built form. The public interest test was met since the proposal remained consistent with development and zone objectives, and the merit assessment resolved that the fifth level’s impacts were acceptable. Thus, the appeal was upheld and consent granted, subject to conditions.

Parties
Applicant: Manuel Hansimikali; Respondent: Bayside Council
Jurisdiction
Australia
Judgment Date
01 August 2019
Procedural Posture
Development Appeal / Final Judgment After Hearing
Outcome
Appeal upheld; development consent granted subject to conditions
Legal Topics
Development Application, Height of Buildings Development Standard, Clause 4.6 Variation, Built Form and Scale, Residential Amenity
Environmental Law Planning Law Development Application Height of Buildings Development Standard Clause 4.6 Variation Built Form and Scale Residential Amenity

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Parties

Manuel Hansimikali

Applicant

Bayside Council

Respondent

Procedural Posture

Development Appeal / Final Judgment After Hearing

Legal Issues

  1. 1 Whether the exceedance of the height of buildings development standard is justified under cl 4.6 of the Botany Bay Local Environmental Plan 2013
  2. 2 Whether the proposal is consistent with the desired future character of the locality
  3. 3 Whether there is an unreasonable impact on the amenity of adjoining properties

Ratio Decidendi

The applicant's written request satisfactorily demonstrated that compliance with the 14m height of buildings development standard was unreasonable and unnecessary, as the objectives of the standard were achieved through design measures minimising amenity impacts and achieving a consistent built form. The public interest test was met since the proposal remained consistent with development and zone objectives, and the merit assessment resolved that the fifth level’s impacts were acceptable. Thus, the appeal was upheld and consent granted, subject to conditions.

Court Disposition

Appeal upheld; development consent granted subject to conditions

Orders

  • The appeal is upheld.
  • Development Application No. 2017/1161 for the demolition of existing structures and the construction of a four and five storey mixed use development at 1027-1043 Botany Road, Mascot, is approved, subject to the conditions of consent at Annexure A.