Reswent Pty Ltd v Waverley Council [2021] NSWLEC 1388

Reswent Pty Ltd v Waverley Council [2021] NSWLEC 1388

The appeal was dismissed because the Applicant's cl 4.6 written request for the building height contravention did not adequately demonstrate that compliance with objective (d) of the height standard was unreasonable or unnecessary, and did not establish sufficient environmental planning grounds to justify the contravention. The Court found the proposed built form, roof form, upper-level presentation, cantilevered balconies and front setback functions incompatible with the height, bulk and scale of the desired future character of the low density locality on the southern side of Sir Thomas Mitchell Road. Because the Court could not form the required positive opinion of satisfaction under cl...

Jurisdiction
Australia
Judgment Date
06 July 2021
Procedural Posture
Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Concerning Refusal of Development Application No. DA 109/2020 / Principal Judgment After Hearing
Outcome
Appeal dismissed; development consent refused.
Legal Topics
['existing Use Rights' 'residential Flat Building in R2 Low Density Residential Zone' 'clause 4.6 Written Request' 'building Height Development Standard' 'floor Space Ratio Development Standard' 'desired Future Character' 'overshadowing and Amenity']
['environmental and Planning Law' 'development Consent' 'land Use and Zoning'] ['existing Use Rights' 'residential Flat Building in R2 Low Density Residential Zone' 'clause 4.6 Written Request' 'building Height Development Standard' 'floor Space Ratio Development Standard' 'desired Future Character' 'overshadowing and Amenity']

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Procedural Posture

Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Concerning Refusal of Development Application No. DA 109/2020 / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the site benefited from existing use rights for a residential flat building and whether the application could be considered as an enlargement, expansion or intensification of that use.' 'Whether the written request under cl 4.6 of the Waverley Local Environmental Plan 2012 adequately demonstrated that compliance with the cl 4.3 building height development standard was unreasonable or unnecessary.' 'Whether the written request established sufficient environmental planning grounds to justify contravention of the building height standard.' 'Whether the proposed development was compatible with the height, bulk and scale of the desired future character of the locality.' "Whether the Court's power to grant development consent was enlivened."]

Ratio Decidendi

The appeal was dismissed because the Applicant's cl 4.6 written request for the building height contravention did not adequately demonstrate that compliance with objective (d) of the height standard was unreasonable or unnecessary, and did not establish sufficient environmental planning grounds to justify the contravention. The Court found the proposed built form, roof form, upper-level presentation, cantilevered balconies and front setback functions incompatible with the height, bulk and scale of the desired future character of the low density locality on the southern side of Sir Thomas Mitchell Road. Because the Court could not form the required positive opinion of satisfaction under cl...

Court Disposition

Appeal dismissed; development consent refused.

Orders

  • ['The appeal is dismissed.' 'Development consent for Development Application No. DA-109/2020 for the demolition of the existing two-storey residential flat building and construction of a new three-storey residential flat building comprising 4 apartments and basement carpark at No 56 Sir Thomas Mitchell Road, Bondi...