SJD DB2 Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1112

SJD DB2 Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1112

The appeal was upheld because the Court was satisfied that the cl 4.6 requests adequately addressed the statutory requirements: the relevant height and floor space ratio controls had been abandoned for this discrete southern-side Cross Street block, the proposal achieved the objectives of the controls and the B2 zone notwithstanding non-compliance, and there were sufficient environmental planning grounds in the coherent streetscape and urban design outcome. The proposal was consistent with the desired future character established by the recent adjacent approvals, its visual intrusion was minor and minimised, the loss of commercial floor space would not materially affect the viability of...

Jurisdiction
Australia
Judgment Date
12 March 2020
Procedural Posture
Class 1 Appeal Pursuant to S 8.15 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Merits Hearing and Determination
Outcome
Appeal upheld and development consent granted subject to conditions.
Legal Topics
['development Application' 'clause 4.6 Objection' 'height Development Standard' 'floor Space Ratio' 'desired Future Character' 'economic Impact' 'visual Intrusion' 'precedent']
['planning and Environment Law' 'development Consent' 'land Use and Zoning'] ['development Application' 'clause 4.6 Objection' 'height Development Standard' 'floor Space Ratio' 'desired Future Character' 'economic Impact' 'visual Intrusion' 'precedent']

Case Brief

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Procedural Posture

Class 1 Appeal Pursuant to S 8.15 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Merits Hearing and Determination

Legal Issues

  1. 1 ['Whether the written cl 4.6 requests adequately demonstrated that compliance with the height and floor space ratio development standards was unreasonable or unnecessary and that there were sufficient environmental planning grounds to justify contravention.' 'Whether the proposal was consistent with the objectives of the height and floor space ratio standards and the B2 Local Centre zone objectives.' 'Whether recent approvals at 16-18 Cross Street and 20-26 Cross Street established the desired future character or demonstrated abandonment of the controls in this part of Cross Street.' "Whether the proposal's visual intrusion on apartments at 45-51 Cross Street was unacceptable." 'Whether the loss of first floor commercial floor space was an unacceptable economic impact or reason for refusal.' 'Whether the proposal was inconsistent with relevant Woollahra Development Control Plan 2015 built form controls.']

Ratio Decidendi

The appeal was upheld because the Court was satisfied that the cl 4.6 requests adequately addressed the statutory requirements: the relevant height and floor space ratio controls had been abandoned for this discrete southern-side Cross Street block, the proposal achieved the objectives of the controls and the B2 zone notwithstanding non-compliance, and there were sufficient environmental planning grounds in the coherent streetscape and urban design outcome. The proposal was consistent with the desired future character established by the recent adjacent approvals, its visual intrusion was minor and minimised, the loss of commercial floor space would not materially affect the viability of...

Court Disposition

Appeal upheld and development consent granted subject to conditions.

Orders

  • ['The appeal is upheld.' "Development consent is granted for demolition of the existing buildings and construction of a six-storey shop top housing development at 28-34 Cross Street, Double Bay with ground floor retail, twenty-one (21) residential units over five (5) levels above and two (2) levels of basement...