Askaro v Woollahra Municipal Council [2021] NSWLEC 1581

Askaro v Woollahra Municipal Council [2021] NSWLEC 1581

The amended proposal was acceptable because the Court accepted the Applicant's method for determining the applicable side setback on the irregular site, the experts agreed the setback, siting and any floorplate departure were acceptable, the building was well below the maximum height permitted by the WLEP, and water views from No 5 Loch Maree Place would remain available despite some impact across a side boundary. Relevant WLEP, SEPP, SREP, BASIX, contamination, acid sulfate soils, stormwater and public submission matters were adequately addressed. Development consent was therefore granted subject to conditions.

Jurisdiction
Australia
Judgment Date
05 October 2021
Procedural Posture
Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 From Refusal of Development Application No Da448/2019/1 / Hearing Following Termination of Mandatory Conciliation Conference Under S 34 Aa(2)(b)(i) of the Land and Environment Court Act 1979
Outcome
Appeal upheld; development consent granted subject to conditions.
Legal Topics
['class 1 Development Appeal' 'dwelling House Development in R2 Low Density Residential Zone' 'view Loss' 'building Envelope and Floorplate Controls' 'public Submissions' 'basix' 'acid Sulfate Soils' 'remediation of Land' 'sydney Harbour Catchment']
['planning and Environment Law' 'development Consent' 'residential Development'] ['class 1 Development Appeal' 'dwelling House Development in R2 Low Density Residential Zone' 'view Loss' 'building Envelope and Floorplate Controls' 'public Submissions' 'basix' 'acid Sulfate Soils' 'remediation of Land' 'sydney Harbour Catchment']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 From Refusal of Development Application No Da448/2019/1 / Hearing Following Termination of Mandatory Conciliation Conference Under S 34 Aa(2)(b)(i) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether the departure from the building envelope and floorplate controls in the Woollahra Development Control Plan 2015 resulted in unreasonable view loss from No 5 Loch Maree Place.' "How the applicable side setback should be calculated given the site's sweeping curved frontage to Loch Maree Place." 'Whether the amended proposal adequately addressed relevant provisions of the Woollahra Local Environmental Plan 2014, including cll 6.1 and 6.2.' 'Whether public submissions raised matters requiring refusal or further amendment of the proposal.' 'Whether relevant State and regional environmental planning instruments were satisfied.']

Ratio Decidendi

The amended proposal was acceptable because the Court accepted the Applicant's method for determining the applicable side setback on the irregular site, the experts agreed the setback, siting and any floorplate departure were acceptable, the building was well below the maximum height permitted by the WLEP, and water views from No 5 Loch Maree Place would remain available despite some impact across a side boundary. Relevant WLEP, SEPP, SREP, BASIX, contamination, acid sulfate soils, stormwater and public submission matters were adequately addressed. Development consent was therefore granted subject to conditions.

Court Disposition

Appeal upheld; development consent granted subject to conditions.

Orders

  • ['The appeal is upheld.' 'Development consent is granted to Development Application No DA448/2019/1 for the demolition of the existing dwelling house and the construction of a new 3 storey dwelling house at 4 Loch Maree Place, Vaucluse, subject to the conditions of consent contained at Annexure A.' 'All exhibits are...