TERRA FERMA PTY LTD v Sutherland Shire Council [2022] NSWLEC 1522

TERRA FERMA PTY LTD v Sutherland Shire Council [2022] NSWLEC 1522

Although the clause 4.6 request to vary the Height of Buildings standard was justified and could be upheld, the proposed development does not deliver an adequate level of amenity due to poor spatial relationship and privacy between dwellings, insufficient landscaping, and fails to achieve the required low-density character. The appeal is dismissed and development consent refused.

Parties
Applicant: Terra Ferma Pty Ltd; Respondent: Sutherland Shire Council
Jurisdiction
Australia
Judgment Date
27 September 2022
Procedural Posture
Appeal (class 1) – Land and Environment Court / Final Judgment – Merits Appeal Against Refusal of Development Consent
Outcome
Appeal dismissed; Development consent refused
Legal Topics
Development Consent, Height of Buildings, Clause 4.6 Variations, Local Environmental Plans, Amenity, Neighbourhood Character, Privacy
Planning and Environment Law Development Consent Height of Buildings Clause 4.6 Variations Local Environmental Plans Amenity Neighbourhood Character Privacy

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Parties

Terra Ferma Pty Ltd

Applicant

Sutherland Shire Council

Respondent

Procedural Posture

Appeal (class 1) – Land and Environment Court / Final Judgment – Merits Appeal Against Refusal of Development Consent

Legal Issues

  1. 1 Whether written request to vary Height of Buildings Development Standard in cl 4.3 via cl 4.6 should be upheld
  2. 2 Whether the development is consistent with character and amenity anticipated by the planning controls
  3. 3 Whether sufficient environmental planning grounds exist for the height variation

Ratio Decidendi

Although the clause 4.6 request to vary the Height of Buildings standard was justified and could be upheld, the proposed development does not deliver an adequate level of amenity due to poor spatial relationship and privacy between dwellings, insufficient landscaping, and fails to achieve the required low-density character. The appeal is dismissed and development consent refused.

Court Disposition

Appeal dismissed; Development consent refused

Orders

  • The appeal is dismissed.
  • Development consent for Development Application DA21/0842 is refused.