Saha Builders Pty Ltd v Ku-ring-gai Council [2019] NSWLEC 1497

Saha Builders Pty Ltd v Ku-ring-gai Council [2019] NSWLEC 1497

The appeal was dismissed because, although the proposal complied with the single-storey requirement in the rear 25% of the site and did not require a cl 4.6 request for exceeding the cl 50(b) floor space ratio threshold, the terrace-row built form was forced onto an awkward irregular site, sat uncomfortably on the land, failed to respond to the cul-de-sac streetscape and site orientation, created excessive bulk and visual impact, caused inadequate internal amenity and privacy, and had inadequate setbacks with adverse impacts on neighbouring properties. The Court was not satisfied that the proposal was consistent with the aims of SEPP Seniors for housing to be of good design or with the...

Jurisdiction
Australia
Judgment Date
22 October 2019
Procedural Posture
Class 1 Development Appeal Against Deemed Refusal of Development Application No. 0208/18 / Principal Judgment After Hearing
Outcome
Appeal dismissed; development application refused.
Legal Topics
['development Application' 'seniors Housing' 'state Environmental Planning Policy (housing for Seniors or People With a Disability) 2004' 'rear 25% Setback' 'gross Floor Area and Floor Space Ratio' 'neighbourhood Amenity' 'residential Character' 'building Setbacks' 'internal Site Amenity']
['planning and Environment Law'] ['development Application' 'seniors Housing' 'state Environmental Planning Policy (housing for Seniors or People With a Disability) 2004' 'rear 25% Setback' 'gross Floor Area and Floor Space Ratio' 'neighbourhood Amenity' 'residential Character' 'building Setbacks' 'internal Site Amenity']

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Procedural Posture

Class 1 Development Appeal Against Deemed Refusal of Development Application No. 0208/18 / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the proposal complied with cl 40(4)(c) of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 requiring a building located in the rear 25% area of the site not to exceed 1 storey in height.' 'How the rear 25% area of an irregularly shaped site should be calculated for the purpose of cl 40(4)(c) of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004.' 'Whether basement, visitor parking, ancillary storage, garbage room and ground floor lift lobby areas contributed to gross floor area and floor space ratio under State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004.' 'Whether exceeding the floor space ratio threshold in cl 50(b) of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 required a written request under cl 4.6 of Ku-ring-gai Local Environmental Plan 2015.' 'Whether the proposal maintained reasonable neighbourhood amenity and appropriate residential character, including as to built form, density, scale, setbacks, privacy, landscaping, open space and streetscape presentation.']

Ratio Decidendi

The appeal was dismissed because, although the proposal complied with the single-storey requirement in the rear 25% of the site and did not require a cl 4.6 request for exceeding the cl 50(b) floor space ratio threshold, the terrace-row built form was forced onto an awkward irregular site, sat uncomfortably on the land, failed to respond to the cul-de-sac streetscape and site orientation, created excessive bulk and visual impact, caused inadequate internal amenity and privacy, and had inadequate setbacks with adverse impacts on neighbouring properties. The Court was not satisfied that the proposal was consistent with the aims of SEPP Seniors for housing to be of good design or with the...

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed.' "Development Application No. 0208/18 for the demolition of existing structures and construction of a multi dwelling seniors' housing development consisting of 7 two-storey attached dwellings with basement car parking and associated works is refused." 'The Exhibits, other than Exhibits 1,...