Primo Developments Sydney Pty Ltd v Woollahra Municipal Council [2019] NSWLEC 1380

Primo Developments Sydney Pty Ltd v Woollahra Municipal Council [2019] NSWLEC 1380

The Court upheld the appeal because the proposal complied with applicable development standards and was acceptable against the relevant planning controls. Although the site was in the vicinity of 'Fenton' and adjoining the Woollahra HCA, the original setting and harbour panorama of 'Fenton' had already been substantially compromised by prior development, the remaining harbour view would be unaffected, many views within 'Fenton' would not include the proposed development, and the Court preferred the Applicant's heritage evidence that obstruction of sky in the circumstances would not adversely affect heritage significance. The Court was also satisfied that SEPP 65, floor space ratio, rail...

Jurisdiction
Australia
Judgment Date
15 August 2019
Procedural Posture
Class 1 Development Appeal / Appeal Against Refusal of Development Application Da558/2016 by the Woollahra Local Planning Panel
Outcome
Appeal upheld; development consent granted subject to conditions.
Legal Topics
['development Appeal' 'impact on State Heritage Item' 'heritage Conservation Area' 'desired Future Character' 'view Loss' 'rail Corridor Noise and Vibration' 'floor Space Ratio' 'sepp 65 Design Quality']
['planning and Environment' 'development Consent' 'heritage' 'residential Apartment Development'] ['development Appeal' 'impact on State Heritage Item' 'heritage Conservation Area' 'desired Future Character' 'view Loss' 'rail Corridor Noise and Vibration' 'floor Space Ratio' 'sepp 65 Design Quality']

Case Brief

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Procedural Posture

Class 1 Development Appeal / Appeal Against Refusal of Development Application Da558/2016 by the Woollahra Local Planning Panel

Legal Issues

  1. 1 ["Whether the proposed development would adversely affect the heritage significance or setting of the adjoining heritage item known as 'Fenton' or the Woollahra Heritage Conservation Area." 'Whether the proposed development was consistent with the desired future character of the Wollaroy Precinct under the Woollahra Development Control Plan 2015.' 'Whether the proposal satisfied requirements relating to residential apartment design, car parking, setbacks and floor space ratio.' 'Whether appropriate measures and concurrence addressed impacts associated with the Eastern Suburbs rail corridor under State Environmental Planning Policy (Infrastructure) 2007.' 'Whether view loss to neighbouring properties was acceptable having regard to the planning principle in Tenacity Consulting v Waringah.' 'Whether the development application should be refused as not in the public interest.']

Ratio Decidendi

The Court upheld the appeal because the proposal complied with applicable development standards and was acceptable against the relevant planning controls. Although the site was in the vicinity of 'Fenton' and adjoining the Woollahra HCA, the original setting and harbour panorama of 'Fenton' had already been substantially compromised by prior development, the remaining harbour view would be unaffected, many views within 'Fenton' would not include the proposed development, and the Court preferred the Applicant's heritage evidence that obstruction of sky in the circumstances would not adversely affect heritage significance. The Court was also satisfied that SEPP 65, floor space ratio, rail...

Court Disposition

Appeal upheld; development consent granted subject to conditions.

Orders

  • ['The appeal is upheld.' 'Development consent is granted for DA558/2016 for the demolition of an existing dwelling and ancillary structures, and construction of a new 9-storey residential flat building containing 15 units including basement parking, swimming pool and ancillary site and landscape works at 448...