Pertama Development Pty Ltd v Waverley Council [2021] NSWLEC 1785

Land and Environment Court New South Wales

Medium Neutral Citation: Pertama Development Pty Ltd v Waverley Council [2021] NSWLEC 1785 Hearing dates: 2-3 November 2021 Date of orders: 22 December 2021 Decision date: 22 December 2021 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The appeal is dismissed. (2) The development application DA-9/2021 for the demolition of three dwelling houses and construction of a 3-storey seniors housing development incorporating 10 self-contained apartments, basement car parking and landscaping, at 53-57 Beaumont Street, Rose Bay, is refused. (3) The exhibits are returned, except for Exhibits A, J and 3. Catchwords: APPEAL – development application – seniors living – independent living units in form of residential flat building – proposal does not meet criteria for density and scale – breach of floor space ratio development standard – whether proposal is of excessive scale –requirements for access to facilities and services – whether suitable access pathway – whether gradients acceptable – absence of communal open space – view loss – overshadowing – stormwater management Legislation Cited: Environmental Planning and Assessment Act 1979, ss 1.4, 3.28, 4.15, 8.7 Environmental Planning and Assessment Regulation 2000, cl 55 Interpretation Act 1987, s 38 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004, cll 2, 5, 14, 15, 25, 26, 29, 31, 32, 33, 35, 36, 38, 40, 50 State Environmental Planning Policy (Housing) 2021 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cll 28, 30 Waverley Local Environmental Plan 2012, cll 4.4, 4.6 Cases Cited: Armada Avalon Pty Ltd v Northern Beaches Council [2021] NSWLEC 1490 Australian Nursing Home Foundation Limited v Ku-ring-gai Council [2019] NSWLEC 1205 Binetter v Woollahra Municipal Council [2019] NSWLEC 1116 Eastern Suburbs Leagues Club Ltd v Waverley Council [2019] NSWLEC 130 Hastings Point Progress Association Inc v Tweed Shire Council (2009) 168 LGERA 99; [2009] NSWCA 285 Malton Road Development Pty Ltd v Hornsby Shire Council [2018] NSWLEC 1265 Pertama Development Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 1581 Principal Healthcare Finance Pty Ltd v Council of the City of Ryde (2016) 222 LGERA 212; [2016] NSWLEC 153 Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; [2001] NSWCA 270 Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140 Texts Cited: AS 1428.1-2009 Design for Access and Mobility - General Requirements for Access - New Building Work Seniors Living Policy: Urban Design Guidelines for Infill Development Waverley Development Control Plan Amendment No 9 Category: Principal judgment Parties: Pertama Development Pty Ltd (Applicant) Waverley Council (Respondent) Representation: Counsel: A Pickles SC with C Koikas (Applicant) M Staunton (Respondent)