N.A.E.D. Nominees Pty Ltd v Waverley Council [2005] NSWLEC 330

Procedural Posture

Class 1 Appeal / Appeal Against Refusal of Consent for Alterations and Additions to an Existing Bottle Shop and Apartment

Legal Issues

1. 1 ['Whether non-compliance with the maximum floor space ratio for mixed development under Waverley Local Environmental Plan 1996 was supportable under State Environmental Planning Policy No. 1.' 'Whether non-compliance with the maximum residential floor space ratio under Waverley Local Environmental Plan 1996 was supportable under State Environmental Planning Policy No. 1.' 'Whether the proposed development was compatible with the objectives of the adjoining Residential 2(a) zone.' 'Whether the proposed height of the development should be reduced given the excessive floor space ratio.' 'Whether the enlarged first floor terrace and additional second floor terraces would have unacceptable visual and acoustic impacts on adjoining properties.' 'Whether the proposed development would obstruct harbour and city views from properties to the east to an unacceptable level.' 'Whether the proposal was in the public interest having regard to submissions received.' 'Whether the proposal had an unsatisfactory and unreasonable overshadowing impact on the existing building at 216 Military Road, Dover Heights.']

Ratio Decidendi

The proposal sought to maximise development substantially beyond the permitted floor space ratio, including a total FSR calculated by the Court-appointed planner as 1.45:1 against a 1:1 standard, and this overdevelopment created real impacts including bulk and scale, view loss, privacy and overshadowing on a transitional site adjoining residential land. The State Environmental Planning Policy No. 1 objection was not soundly based, and the development application was properly refused.

Court Disposition

Appeal dismissed

Orders

• ['The appeal is dismissed.' 'The exhibits are returned to the parties except Exhibits 1, 2, 3, A, C and D.']