Ricola Pty Ltd v Woollahra Municipal Council [2021] NSWLEC 1047

Ricola Pty Ltd v Woollahra Municipal Council [2021] NSWLEC 1047

The written request for the breach of the height development standard failed to adequately address the required matters under cl 4.6(3) of WLEP 2014. In particular, it did not demonstrate that compliance with the standard was unreasonable or unnecessary, nor did it sufficiently justify the contravention on environmental planning grounds, as it did not outline how the actual and measurable amenity impacts (notably view loss and visual intrusion to Unit 7C, 2-22 Knox Street) would be minimised. As a result, the Court was not satisfied under cl 4.6(4)(a)(i) and thus had no power to grant development consent.

Parties
Applicant: Ricola Pty Ltd; Respondent: Woollahra Municipal Council
Jurisdiction
Australia
Judgment Date
28 January 2021
Procedural Posture
Appeal / Final Judgment
Outcome
Appeal dismissed. Development application refused.
Legal Topics
Development Application, Breach of Development Standards, Height Controls, Floor Space Ratio (fsr), Desired Future Character, View Loss, Clause 4.6 Written Request
Planning and Environment Law Development Application Breach of Development Standards Height Controls Floor Space Ratio (fsr) Desired Future Character View Loss Clause 4.6 Written Request

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Parties

Ricola Pty Ltd

Applicant

Woollahra Municipal Council

Respondent

Procedural Posture

Appeal / Final Judgment

Legal Issues

  1. 1 Whether the written request for breach of height development standard (cl 4.6 WLEP 2014) adequately addresses required matters
  2. 2 Whether compliance with development standards for height and FSR is unreasonable or unnecessary
  3. 3 Whether there are sufficient environmental planning grounds to justify the contravention of standards

Ratio Decidendi

The written request for the breach of the height development standard failed to adequately address the required matters under cl 4.6(3) of WLEP 2014. In particular, it did not demonstrate that compliance with the standard was unreasonable or unnecessary, nor did it sufficiently justify the contravention on environmental planning grounds, as it did not outline how the actual and measurable amenity impacts (notably view loss and visual intrusion to Unit 7C, 2-22 Knox Street) would be minimised. As a result, the Court was not satisfied under cl 4.6(4)(a)(i) and thus had no power to grant development consent.

Court Disposition

Appeal dismissed. Development application refused.

Orders

  • The appeal is dismissed.
  • The development application for the demolition of the existing building and the construction of a six-storey shop top housing development at 49-53 Bay Street, Double Bay, is refused.