David and Maxine Pacanowski v Woollahra Council [2017] NSWLEC 1277

David and Maxine Pacanowski v Woollahra Council [2017] NSWLEC 1277

The cl 4.6 application was upheld because the Applicants' written request adequately demonstrated that strict compliance with the height standard was unreasonable or unnecessary and that sufficient environmental planning grounds justified the minor height contravention. The proposal was consistent with the objectives of the height standard and the R2 zone, located bulk away from the street, preserved and created public and private view corridors, complied with almost all planning controls, represented a skilful design, and caused no unacceptable view loss or solar access impact. The loss of part of Mr Levy's view of the Shark Island land/water interface was not sufficient to warrant...

Jurisdiction
Australia
Judgment Date
01 June 2017
Procedural Posture
Class 1 Appeal Under S 97(1) of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Consent / Hearing Following Conciliation Conference; Principal Judgment
Outcome
Appeal upheld; development consent granted subject to conditions.
Legal Topics
['deemed Refusal of Development Application' 'clause 4.6 Variation to Height Development Standard' 'view Loss and View Sharing' 'public Domain Views' 'neighbour Amenity and Solar Access' 'skilful Design']
['planning and Environment Law' 'development Consent' 'land and Environment Court Proceedings'] ['deemed Refusal of Development Application' 'clause 4.6 Variation to Height Development Standard' 'view Loss and View Sharing' 'public Domain Views' 'neighbour Amenity and Solar Access' 'skilful Design']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 97(1) of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Consent / Hearing Following Conciliation Conference; Principal Judgment

Legal Issues

  1. 1 ["Whether the Applicants' cl 4.6 written request justified contravention of the 9.5 m height development standard in the Woollahra Local Environmental Plan 2014." "Whether the proposed development's impact on private views, including Mr Levy's view of Shark Island and the land/water interface, warranted refusal of consent." 'Whether the proposed development unreasonably affected public domain views from the Churchill Road and Rawson Road area.' 'Whether the proposed development caused unacceptable amenity impacts, particularly overshadowing and solar access impacts to 3 Rawson Road.' 'Whether the proposal represented a skilful design and whether a height reduction or other amendments should be required.']

Ratio Decidendi

The cl 4.6 application was upheld because the Applicants' written request adequately demonstrated that strict compliance with the height standard was unreasonable or unnecessary and that sufficient environmental planning grounds justified the minor height contravention. The proposal was consistent with the objectives of the height standard and the R2 zone, located bulk away from the street, preserved and created public and private view corridors, complied with almost all planning controls, represented a skilful design, and caused no unacceptable view loss or solar access impact. The loss of part of Mr Levy's view of the Shark Island land/water interface was not sufficient to warrant...

Court Disposition

Appeal upheld; development consent granted subject to conditions.

Orders

  • ['The cl 4.6 application is upheld.' 'Development Application no. 208/2016 is granted for the demolition of existing improvements and construction of a new dwelling upon land comprising Lot B DP 391102 known as 1 Rawson Road, Rose Bay, subject to conditions of consent attached and marked "A".' 'The Exhibits, other...