Bondi Beachside Pty Limited v Waverley Council [2022] NSWLEC 1355

Bondi Beachside Pty Limited v Waverley Council [2022] NSWLEC 1355

The proposed works and changes of use related to existing parts of the building and did not create additional gross floor area, so no written request under cl 4.6 of Waverley Local Environmental Plan 2012 was required for the existing FSR exceedance. In any event, the written request justified the variation because compliance was unreasonable and unnecessary and sufficient environmental planning grounds existed. The proposal exhibited design excellence, provided acceptable activation and use mix when assessed against the relevant controls, was not contrary to the applicable character considerations, and the amenity of the proposed apartments was acceptable. The amended development...

Jurisdiction
Australia
Judgment Date
06 July 2022
Procedural Posture
Class 1 Appeal Against Refusal of Development Application Da/415/2020 Under S 8.7 of the Environmental Planning and Assessment Act 1979 / Principal Judgment After Hearing; Appeal Followed Unsuccessful Conciliation Under S 34 of the Land and Environment Court Act 1979
Outcome
Appeal upheld; development consent granted subject to conditions.
Legal Topics
['development Application Appeal' 'floor Space Ratio Development Standard' 'clause 4.6 Variation Request' 'design Excellence' 'active Street Frontages' 'desired Future Character' 'residential Apartment Amenity' 'shop Top Housing']
['planning and Environment Law' 'development Consent' 'local Environmental Planning'] ['development Application Appeal' 'floor Space Ratio Development Standard' 'clause 4.6 Variation Request' 'design Excellence' 'active Street Frontages' 'desired Future Character' 'residential Apartment Amenity' 'shop Top Housing']

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Procedural Posture

Class 1 Appeal Against Refusal of Development Application Da/415/2020 Under S 8.7 of the Environmental Planning and Assessment Act 1979 / Principal Judgment After Hearing; Appeal Followed Unsuccessful Conciliation Under S 34 of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether the development exceeded the applicable floor space ratio standard so as to require a written request to vary the standard' 'If a written request was required, whether the request to vary the floor space ratio standard was well founded' 'Whether the development exhibited design excellence under cl 6.9 of Waverley Local Environmental Plan 2012' 'Whether conversion of part of the first floor commercial floor space to residential apartments was appropriate having regard to street activation and desired future character' 'Whether the proposed first floor apartments would have acceptable amenity']

Ratio Decidendi

The proposed works and changes of use related to existing parts of the building and did not create additional gross floor area, so no written request under cl 4.6 of Waverley Local Environmental Plan 2012 was required for the existing FSR exceedance. In any event, the written request justified the variation because compliance was unreasonable and unnecessary and sufficient environmental planning grounds existed. The proposal exhibited design excellence, provided acceptable activation and use mix when assessed against the relevant controls, was not contrary to the applicable character considerations, and the amenity of the proposed apartments was acceptable. The amended development...

Court Disposition

Appeal upheld; development consent granted subject to conditions.

Orders

  • ['The appeal is upheld.' 'Development consent is granted to development application DA/415/2020 for conversion of the existing retail premises on the first floor of the existing building into three residential apartments and two retail premises and ground floor alterations to remove an existing stair and lift to...