Goldberg v Waverley Council [2017] NSWLEC 1613

Goldberg v Waverley Council [2017] NSWLEC 1613

The amended plans and clause 4.6 request adequately address the FSR exceedance and planning issues; the Court has power under s.39(2) to release the negative easement; the right-of-way's prospective use does not trigger intensification requiring additional consent; conditional development consent is appropriate.

Parties
Applicant: Suzanne Goldberg; Respondent: Waverley Council
Jurisdiction
Australia
Judgment Date
07 November 2017
Procedural Posture
Appeal (class 1, Land and Environment Court) / Final Judgment and Orders
Outcome
Appeal upheld; development consent granted subject to conditions; negative easement released; costs awarded.
Legal Topics
Development Applications, Floor Space Ratio, Negative Easement, Dual Occupancy, Right of Way, Restrictive Covenants
Planning and Environment Law Property Law Development Applications Floor Space Ratio Negative Easement Dual Occupancy Right of Way Restrictive Covenants

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Parties

Suzanne Goldberg

Applicant

Waverley Council

Respondent

Procedural Posture

Appeal (class 1, Land and Environment Court) / Final Judgment and Orders

Legal Issues

  1. 1 Whether the development application for dual occupancy should be approved
  2. 2 Whether the proposal complies with the floor space ratio development standard
  3. 3 Whether the negative easement restricting dwellings on site can be released, varied, or modified by the Court

Ratio Decidendi

The amended plans and clause 4.6 request adequately address the FSR exceedance and planning issues; the Court has power under s.39(2) to release the negative easement; the right-of-way's prospective use does not trigger intensification requiring additional consent; conditional development consent is appropriate.

Court Disposition

Appeal upheld; development consent granted subject to conditions; negative easement released; costs awarded.

Orders

  • Applicant granted leave to rely on amended plans listed.
  • Applicant to pay Respondent's costs ($10,000) for amended plans under s.97B EP&A Act within 28 days.