New Street No. 1 Pty Ltd v Waverley Council [2017] NSWLEC 1592

New Street No. 1 Pty Ltd v Waverley Council [2017] NSWLEC 1592

The Court was not satisfied under cl 4.6(4) of the Waverley Local Environmental Plan 2012 because the proposed variation to the floor space ratio standard failed to satisfy the objectives of the standard, particularly preserving neighbouring amenity, minimising adverse amenity impacts, and compatibility with the existing character of the locality. The additional floor space caused material adverse impacts including reduced solar amenity, privacy impacts and incompatible bulk and scale. Because cl 4.6 was a jurisdictional precondition to granting consent, the Court had no power to approve the development application and the appeal was dismissed.

Jurisdiction
Australia
Judgment Date
24 October 2017
Procedural Posture
Class 1 Development Appeal / Appeal Against Waverley Council's Refusal of Development Application DA 571/2016, Determined After Hearing
Outcome
Appeal dismissed; development application refused.
Legal Topics
['development Consent' 'clause 4.6 Variation Request' 'floor Space Ratio' 'building Height Development Standard' 'streetscape and Neighbourhood Character' 'residential Amenity' 'sepp 65 Design Quality Principles' 'parking and Access' 'public Interest']
['planning and Environment Law' 'development Appeals'] ['development Consent' 'clause 4.6 Variation Request' 'floor Space Ratio' 'building Height Development Standard' 'streetscape and Neighbourhood Character' 'residential Amenity' 'sepp 65 Design Quality Principles' 'parking and Access' 'public Interest']

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Procedural Posture

Class 1 Development Appeal / Appeal Against Waverley Council's Refusal of Development Application DA 571/2016, Determined After Hearing

Legal Issues

  1. 1 ['Whether the applicant should be granted leave to rely on amended plans.' 'Whether the written request under cl 4.6 of the Waverley Local Environmental Plan 2012 justified contravention of the floor space ratio development standard.' 'Whether the proposed development was consistent with the objectives of the B1 Neighbourhood Centre zone and the objectives of the floor space ratio standard.' 'Whether the proposed additional floor space caused unacceptable impacts on solar amenity, privacy, streetscape character and neighbouring properties.' 'Whether, if the cl 4.6 precondition was not met, the Court had power to grant development consent.']

Ratio Decidendi

The Court was not satisfied under cl 4.6(4) of the Waverley Local Environmental Plan 2012 because the proposed variation to the floor space ratio standard failed to satisfy the objectives of the standard, particularly preserving neighbouring amenity, minimising adverse amenity impacts, and compatibility with the existing character of the locality. The additional floor space caused material adverse impacts including reduced solar amenity, privacy impacts and incompatible bulk and scale. Because cl 4.6 was a jurisdictional precondition to granting consent, the Court had no power to approve the development application and the appeal was dismissed.

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The applicant is granted leave to rely on amended plans.' 'No order as to costs.' 'The objections pursuant to cl 4.6 of the Waverley Local Environmental Plan 2012 are not sustained.' 'The appeal is dismissed.' 'Development application DA 571/2016 for proposed alterations and additions to the approved mixed use...