Pertama Development Pty Ltd v Waverley Council [2021] NSWLEC 1785

Pertama Development Pty Ltd v Waverley Council [2021] NSWLEC 1785

The development application was refused because the proposed development was of unacceptable scale, including an excessive ground floor footprint width, bulk that did not follow the site topography, and discernible adverse view loss; because residents would not have access to facilities or public transport by means of a suitable access pathway complying with cl 26 of the SEPP HSPD and the cl 4.6 request did not adequately justify that non-compliance; and because the failure to provide communal open space was unacceptable.

Jurisdiction
Australia
Judgment Date
22 December 2021
Procedural Posture
Class 1 Development Application Appeal / Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Following Deemed Refusal
Outcome
Appeal dismissed; development application refused.
Legal Topics
['development Application Appeal' 'floor Space Ratio Development Standard' 'density and Scale' 'suitable Access Pathway' 'clause 4.6 Variation Request' 'communal Open Space' 'view Loss' 'stormwater Management']
['planning and Environment Law' 'development Consent' 'seniors Housing'] ['development Application Appeal' 'floor Space Ratio Development Standard' 'density and Scale' 'suitable Access Pathway' 'clause 4.6 Variation Request' 'communal Open Space' 'view Loss' 'stormwater Management']

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Procedural Posture

Class 1 Development Application Appeal / Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Following Deemed Refusal

Legal Issues

  1. 1 ['Whether the proposed seniors housing development was of unacceptable density and scale having regard to the SEPP HSPD, SLP Urban Design Guidelines and local planning controls.' 'Whether the FSR development standard in cl 4.4 of the WLEP was set aside by inconsistency with cl 50(b) of the SEPP HSPD.' 'Whether residents would have access to facilities and services by means of a suitable access pathway complying with cl 26 of the SEPP HSPD.' 'Whether the cl 4.6 request adequately justified non-compliance with cl 26 of the SEPP HSPD.' 'Whether the absence of communal open space was acceptable.']

Ratio Decidendi

The development application was refused because the proposed development was of unacceptable scale, including an excessive ground floor footprint width, bulk that did not follow the site topography, and discernible adverse view loss; because residents would not have access to facilities or public transport by means of a suitable access pathway complying with cl 26 of the SEPP HSPD and the cl 4.6 request did not adequately justify that non-compliance; and because the failure to provide communal open space was unacceptable.

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed.' 'The development application DA-9/2021 for the demolition of three dwelling houses and construction of a 3-storey seniors housing development incorporating 10 self-contained apartments, basement car parking and landscaping, at 53-57 Beaumont Street, Rose Bay, is refused.' 'The exhibits...