Stokes v Waverley Council (No 3) [2020] NSWLEC 1224

Stokes v Waverley Council (No 3) [2020] NSWLEC 1224

The Court dismissed the appeal and refused Development Application 404/2017 because, on its own assessment, the proposed development contravened the height and FSR development standards and the applicant's cl 4.6 written requests did not adequately demonstrate that compliance was unreasonable or unnecessary, that there were sufficient environmental planning grounds, or that the contraventions were in the public interest. The Court found the current excavated surface was the ground level (existing) for height assessment, the proposed building was incompatible with the height, bulk, scale, streetscape and existing character of the locality, and the development was an overdevelopment of the...

Jurisdiction
Australia
Judgment Date
20 May 2020
Procedural Posture
Class 1 Development Appeal / Remitter Hearing Following Stokes V Waverley Council (no 2) [2019] NSWLEC 174; Appeal Against Refusal of Development Application 404/2017
Outcome
Appeal dismissed; Development Application 404/2017 refused.
Legal Topics
['development Appeal' 'remitted Matter' 'clause 4.6 Written Requests' 'height of Buildings Development Standard' 'floor Space Ratio Development Standard' 'existing Ground Level' 'excavation' 'consent Orders' 'public Interest']
['planning and Environment Law' 'development Consent' 'land and Environment Court Procedure'] ['development Appeal' 'remitted Matter' 'clause 4.6 Written Requests' 'height of Buildings Development Standard' 'floor Space Ratio Development Standard' 'existing Ground Level' 'excavation' 'consent Orders' 'public Interest']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 1 Development Appeal / Remitter Hearing Following Stokes V Waverley Council (no 2) [2019] NSWLEC 174; Appeal Against Refusal of Development Application 404/2017

Legal Issues

  1. 1 ['Whether leave should be granted to rely on the amended cl 4.6 written request for variation of height and to amend the DA to include strata subdivision.' 'Whether ground level (existing) for assessing height under Waverley Local Environmental Plan 2012 was the current excavated surface or the pre-construction level.' 'Whether the cl 4.6 written request justified contravention of the height development standard.' 'Whether the cl 4.6 written request justified contravention of the floor space ratio development standard.' 'Whether the proposed development satisfied s 4.15(1)(a)(i), (c) and (e) of the Environmental Planning and Assessment Act 1979.' "Whether the Court should make the proposed consent orders notwithstanding the parties' agreement."]

Ratio Decidendi

The Court dismissed the appeal and refused Development Application 404/2017 because, on its own assessment, the proposed development contravened the height and FSR development standards and the applicant's cl 4.6 written requests did not adequately demonstrate that compliance was unreasonable or unnecessary, that there were sufficient environmental planning grounds, or that the contraventions were in the public interest. The Court found the current excavated surface was the ground level (existing) for height assessment, the proposed building was incompatible with the height, bulk, scale, streetscape and existing character of the locality, and the development was an overdevelopment of the...

Court Disposition

Appeal dismissed; Development Application 404/2017 refused.

Orders

  • ['Leave is granted to rely on the amended cl 4.6 written request for variation of height, filed 22 April 2020. Leave is not granted to amend the DA to include strata subdivision.' 'The appeal is dismissed.' 'Development Application 404/2017 seeking alterations and additions to an approved five storey building for...