The Benevolent Society v Waverley Council [2010] NSWLEC 1082

The Benevolent Society v Waverley Council [2010] NSWLEC 1082

The proposal was capable of approval because its substantial social benefits and the facultative effect of SEPP Seniors Living justified significant elements of the redevelopment, but approval required modifications to address unacceptable solar impacts on 22-28 Wellington Street, the limits of the site compatibility certificate for the north-eastern corner building, and streetscape and heritage-related setback concerns. The Ocean Street building, Scarba House works and meeting hall did not require modification, while Tree 19 was to be retained by driveway redesign and ancillary commercial uses could be controlled by advertising restrictions rather than the respondent's proposed...

Jurisdiction
Australia
Judgment Date
14 April 2010
Procedural Posture
Development Appeal / Judgment Giving Reasons and Directions Before Final Orders
Outcome
The proposal was found capable of approval subject to modifications, and directions were made for revised plans and settled conditions; if the applicant did not comply, the appeal would be dismissed.
Legal Topics
['development Application' 'heritage Impact' 'social Benefits of Proposal' 'overshadowing' 'view Loss' 'solar Access Planning Principle' 'site Compatibility Certificate' 'tree Removal' 'ancillary Commercial Uses' 'traffic and Parking Impacts']
['planning and Environmental Law' 'development Consent' 'heritage' 'housing for Seniors or People With a Disability' 'affordable Rental Housing'] ['development Application' 'heritage Impact' 'social Benefits of Proposal' 'overshadowing' 'view Loss' 'solar Access Planning Principle' 'site Compatibility Certificate' 'tree Removal' 'ancillary Commercial Uses' 'traffic and Parking Impacts']

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Procedural Posture

Development Appeal / Judgment Giving Reasons and Directions Before Final Orders

Legal Issues

  1. 1 ["Whether the proposed redevelopment of The Benevolent Society's Scarba House site should be approved under State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004." 'Whether the site compatibility certificate permitted the proposed five storey north-eastern corner building.' 'Whether view loss, overshadowing, streetscape presentation, heritage impacts, tree removal, traffic, parking and ancillary commercial uses justified refusal or modification of the development.' 'Whether the social benefits of affordable housing, social housing and ageing in place justified departures from otherwise relevant development controls.' 'Whether the existing planning principle in Parsonage on solar access should be replaced.']

Ratio Decidendi

The proposal was capable of approval because its substantial social benefits and the facultative effect of SEPP Seniors Living justified significant elements of the redevelopment, but approval required modifications to address unacceptable solar impacts on 22-28 Wellington Street, the limits of the site compatibility certificate for the north-eastern corner building, and streetscape and heritage-related setback concerns. The Ocean Street building, Scarba House works and meeting hall did not require modification, while Tree 19 was to be retained by driveway redesign and ancillary commercial uses could be controlled by advertising restrictions rather than the respondent's proposed...

Court Disposition

The proposal was found capable of approval subject to modifications, and directions were made for revised plans and settled conditions; if the applicant did not comply, the appeal would be dismissed.

Orders

  • ['The east-west running element of the proposed Wellington Street building is to be lowered by removing four levels.' 'The top level of the proposed building in the north-eastern corner of the site is to be removed to make it compliant with the maximum project development in the site compatibility certificate.'...