Vatera Pty Ltd v Lane Cove Council [2021] NSWLEC 1130

Vatera Pty Ltd v Lane Cove Council [2021] NSWLEC 1130

The Court was not convinced that the written request demonstrated virtual abandonment of the height standard, and was not satisfied that the written request demonstrated reasonable visual impacts on neighbouring properties to the south. Because the Applicant's written request did not adequately demonstrate that compliance with cl 4.3 of the Lane Cove Local Environmental Plan 2009 was unreasonable or unnecessary, and because the Court was not satisfied that the proposed development would be in the public interest due to consistency with the objectives of that standard, the facultative provisions in cl 4.6(2) could not be engaged and development consent had to be refused.

Jurisdiction
Australia
Judgment Date
15 March 2021
Procedural Posture
Class 1 Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. Da14/2018 / Final Hearing and Determination
Outcome
Appeal dismissed and development application refused.
Legal Topics
['mixed Use Development' 'contravention of Height of Building Development Standard' 'clause 4.6 Written Request' 'public Interest' 'visual Impacts on Neighbouring Properties' 'parking']
['environmental and Planning Law' 'development Consent'] ['mixed Use Development' 'contravention of Height of Building Development Standard' 'clause 4.6 Written Request' 'public Interest' 'visual Impacts on Neighbouring Properties' 'parking']

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Procedural Posture

Class 1 Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. Da14/2018 / Final Hearing and Determination

Legal Issues

  1. 1 ['Whether the written request adequately demonstrated that compliance with the 9.5m height of buildings development standard was unreasonable or unnecessary in the circumstances of the case.' 'Whether the written request adequately demonstrated sufficient environmental planning grounds to justify contravening the development standard.' 'Whether the proposed development would be in the public interest because it was consistent with the objectives of the height of buildings standard and the objectives for development in Zone B2 Local Centre.' "Whether the height of buildings standard had been virtually abandoned by Council's consents for other contravening development." 'Whether the visual impacts of the proposed building on neighbouring properties to the south were reasonable.']

Ratio Decidendi

The Court was not convinced that the written request demonstrated virtual abandonment of the height standard, and was not satisfied that the written request demonstrated reasonable visual impacts on neighbouring properties to the south. Because the Applicant's written request did not adequately demonstrate that compliance with cl 4.3 of the Lane Cove Local Environmental Plan 2009 was unreasonable or unnecessary, and because the Court was not satisfied that the proposed development would be in the public interest due to consistency with the objectives of that standard, the facultative provisions in cl 4.6(2) could not be engaged and development consent had to be refused.

Court Disposition

Appeal dismissed and development application refused.

Orders

  • ['The written request seeking to justify contravention of the applicable height of building standard is not upheld.' 'The appeal is dismissed.' 'DA14/2018 for construction of a five storey mixed-use development and associated works at 38-42 Burns Bay Road Lane Cove is refused.' 'The exhibits are returned with the...