Gerendas v Waverley Council [2011] NSWLEC 1284

Gerendas v Waverley Council [2011] NSWLEC 1284

The Site Specific Design Guidelines were adopted after detailed consultation and were to be given significant, though not determinative, weight. The proposed dual occupancy exceeded the Guidelines' height and gross floor area expectations, did not satisfy the adopted built form parameters, and presented from Arnold Street as a tall, wide building out of scale with the surrounding single-dwelling character. Considered against the aims, objectives and specific requirements of the Guidelines, together with the relevant requirements of the Waverley Development Control Plan 2006 and cl 29 of the Waverley Local Environmental Plan 1996, the proposed development was an overdevelopment of the site...

Jurisdiction
Australia
Judgment Date
29 September 2011
Procedural Posture
Class 1 Appeal Under S97 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Consent / Hearing After S34 AA Conciliation Was Terminated; Principal Judgment
Outcome
Appeal dismissed
Legal Topics
['development Application for Dual Occupancy' 'site Specific Design Guidelines' 'unzoned Land' 'development Control Plan Controls' 'residential Amenity, Views, Privacy and Heritage Impacts' 'tree Removal']
['environmental Planning and Development' 'local Government' 'heritage Conservation'] ['development Application for Dual Occupancy' 'site Specific Design Guidelines' 'unzoned Land' 'development Control Plan Controls' 'residential Amenity, Views, Privacy and Heritage Impacts' 'tree Removal']

Case Brief

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Procedural Posture

Class 1 Appeal Under S97 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Consent / Hearing After S34 AA Conciliation Was Terminated; Principal Judgment

Legal Issues

  1. 1 ['Whether the proposed dual occupancy was an overdevelopment of the site having regard to the Site Specific Design Guidelines, including height, removal of the Port Jackson fig tree and dual occupancy form.' 'Whether the proposed development was contrary to height, floor space ratio and site coverage controls in the development control plan.' 'Whether the proposed development had unacceptable impacts on residential amenity, views, privacy and the heritage significance of the site.' 'What weight should be given to the Site Specific Design Guidelines adopted by the Council for the site.']

Ratio Decidendi

The Site Specific Design Guidelines were adopted after detailed consultation and were to be given significant, though not determinative, weight. The proposed dual occupancy exceeded the Guidelines' height and gross floor area expectations, did not satisfy the adopted built form parameters, and presented from Arnold Street as a tall, wide building out of scale with the surrounding single-dwelling character. Considered against the aims, objectives and specific requirements of the Guidelines, together with the relevant requirements of the Waverley Development Control Plan 2006 and cl 29 of the Waverley Local Environmental Plan 1996, the proposed development was an overdevelopment of the site...

Court Disposition

Appeal dismissed

Orders

  • ['The appeal is dismissed.' 'Development Application DA-652/2010 for the erection of a dual occupancy, including site preparation works and removal of a fig tree, on Lot 2, DP 1073097, Arnold Street Queens Park, is refused.' 'The exhibits are returned except for exhibit 1 and D.']