Stromer v Woollahra Municipal Council [2006] NSWLEC 121

Stromer v Woollahra Municipal Council [2006] NSWLEC 121

Little weight was given to the 2004 consent because it was granted under previous controls and the present application was a new application, not a s96 modification. Although the proposal complied with the LEP 1995 height standard and the expert evidence indicated excavation could technically be carried out without damage if conditioned, the extent of excavation, excavation near boundaries, provision of habitable space below existing ground level, exceedance of the FSR control, and non-compliance with the DCP 2003 storey controls produced unacceptable height, bulk and scale. The setback was not alone a reason for refusal but compounded the bulk impacts. Consent was therefore refused.

Jurisdiction
Australia
Judgment Date
24 March 2006
Procedural Posture
Appeal Against Refusal of Development Application / Judgment
Outcome
Appeal dismissed; development consent refused.
Legal Topics
['development Application for Dwelling House' 'excavation Impacts' 'height, Bulk and Scale' 'floor Space Ratio' 'front Setback and Streetscape Impact' 'weight to Previous Development Consent']
['planning and Environment Law' 'development Consent'] ['development Application for Dwelling House' 'excavation Impacts' 'height, Bulk and Scale' 'floor Space Ratio' 'front Setback and Streetscape Impact' 'weight to Previous Development Consent']

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

Appeal Against Refusal of Development Application / Judgment

Legal Issues

  1. 1 ['Whether the extent of excavation is likely to have an adverse impact on adjoining properties and the landform of the site.' 'Whether the height, bulk and scale of the proposal are acceptable.' 'Whether the setback of the proposal is consistent with adjoining properties and has an acceptable streetscape impact.' 'What weight should be given to the 2004 development consent.']

Ratio Decidendi

Little weight was given to the 2004 consent because it was granted under previous controls and the present application was a new application, not a s96 modification. Although the proposal complied with the LEP 1995 height standard and the expert evidence indicated excavation could technically be carried out without damage if conditioned, the extent of excavation, excavation near boundaries, provision of habitable space below existing ground level, exceedance of the FSR control, and non-compliance with the DCP 2003 storey controls produced unacceptable height, bulk and scale. The setback was not alone a reason for refusal but compounded the bulk impacts. Consent was therefore refused.

Court Disposition

Appeal dismissed; development consent refused.

Orders

  • ['The appeal is dismissed.' 'The development application (DA 793/2004/1) to demolish an existing two storey house and swimming pool and construct a four storey house with basement garage and swimming pool at 15-17 Fairfax Road, Bellevue Hill, is refused.' 'The exhibits may be returned.']