Scarf and Ors v Randwick City Council [2010] NSWLEC 1205

Scarf and Ors v Randwick City Council [2010] NSWLEC 1205

The Court held that the variations to the 10 metre external wall height and 12 metre building height controls satisfied the underlying purposes of the standards and that the SEPP 1 objection was well founded. Although the proposal would cause view loss from units 2A and 2E at No. 94 Alison Road, the views were obtained over a side boundary, were not primary views, and a compliant building would not retain a significant or meaningful view. Requiring redesign would unreasonably affect the development potential of the subject site. The proposal appropriately addressed amenity, privacy, design quality and its planning context, and no s79C matter warranted refusal.

Jurisdiction
Australia
Judgment Date
29 June 2010
Procedural Posture
Development Application Appeal Concerning a Proposed Residential Flat Building / Hearing After an Unsuccessful S 34 Conciliation Conference
Outcome
Appeal upheld; development application approved subject to conditions, with the disputed undergrounding condition deleted.
Legal Topics
['residential Flat Building' 'development Standards' 'state Environmental Planning Policy No 1 Objection' 'building Height and External Wall Height' 'view Loss' 'bulk and Scale' 'amenity' 'development Control Compliance']
['planning and Environment Law' 'development Consent'] ['residential Flat Building' 'development Standards' 'state Environmental Planning Policy No 1 Objection' 'building Height and External Wall Height' 'view Loss' 'bulk and Scale' 'amenity' 'development Control Compliance']

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Procedural Posture

Development Application Appeal Concerning a Proposed Residential Flat Building / Hearing After an Unsuccessful S 34 Conciliation Conference

Legal Issues

  1. 1 ["Whether the proposal's building height and wall height exceed the maximum prescribed under cll 33(2) and 33(4) of the Randwick Local Environmental Plan 1998." 'Whether the State Environmental Planning Policy No 1 objection to the height variations was well founded.' 'Whether the proposal had inappropriate bulk and scale having regard to the character of the area.' 'Whether the proposal would result in unreasonable loss of views from neighbouring properties, particularly units 2A and 2E at No. 94 Alison Road.' 'Whether a condition requiring undergrounding of overhead electricity and cables should be imposed.']

Ratio Decidendi

The Court held that the variations to the 10 metre external wall height and 12 metre building height controls satisfied the underlying purposes of the standards and that the SEPP 1 objection was well founded. Although the proposal would cause view loss from units 2A and 2E at No. 94 Alison Road, the views were obtained over a side boundary, were not primary views, and a compliant building would not retain a significant or meaningful view. Requiring redesign would unreasonably affect the development potential of the subject site. The proposal appropriately addressed amenity, privacy, design quality and its planning context, and no s79C matter warranted refusal.

Court Disposition

Appeal upheld; development application approved subject to conditions, with the disputed undergrounding condition deleted.

Orders

  • ['The appeal in respect of the property known as No. 92 Alison Road, Randwick, is upheld.' 'The development application submitted to Randwick City Council and as amended, shown in Exhibit B, is approved subject to the conditions, Exhibit 8 in the proceedings.' 'The exhibits are returned to the parties except for B,...