Beware of misconstrued Court planning judgements
I see that the Local Planning Panel has approved DA/61493/2021 for a three-unit multi dwelling, including retention of existing dwelling, at 95 Paton St, Woy Woy.
The applicant has made numerous changes to try and accommodate objections by the community and I am in full agreement with his contention that it is a criminal waste to demolish a perfectly good existing house in order to align exactly with the expectations of whoever wrote "Residential Planning 101".
However, the attitude of virtual desperation for development approval at any cost that seems to be pervading the planning process these days is getting embarrassing.
Increasingly developers and their consultants are resorting to obscure references to Land and Environment Court cases to try to baffle and befuddle the community.
In almost all cases, these references are taken completely out of context.
In the case of 95 Paton St, an excerpt from the applicant's "summarized" statement reads: "It has been well established by the Land and Environment Court in case law that the extent of the numerical variation does not form part of the test required to be exercised under clause 4.6.
"Recent decisions of the Court to approve developments subject to clause 4.6 variations reinforce this position.
"For example, in Micaul Holdings P/L v Randwick City Council (2015), the proposal sought to vary the relevant height and FSR controls to allow a 55 per cent exceedance of height and 20 per cent exceedance of FSR.
"In Moskovich v Waverley Council (2016), the proposal sought to vary the FSR control to allow a 65 per cent exceedance of FSR.
"In each of those cases, the Court reached the required level of satisfaction pursuant to clause 4.6(4) of the relevant LEPs and approved the developments with the variations proposed."
The intended impression is that these two cases are taken at random from a plethora of cases that prove the writer's point.
If the cases chosen are the best examples the writer could find in his attempt to convince us that the Land and Environment Court routinely allows large "exceedances" of height and FSR then surely any reasonable person would conclude that he is actually proving the opposite.
In the first case, Micaul Holdings P/L v Randwick City Council (2015) involves three adjoining sites and, to quote the court judgement: "The site topography varies appreciably", complicating height calculations.
There is "an access handle" that is also a disputed right of way, complicating FSR calculations.
The word "contextual" is used seven times in the judgement, attesting to this case's unique nature.
The second case, Moskovich v Waverley Council (2016), is much the same.
To quote from the judgement: "The steep drop in topography ensures that only the front, southern portion of the built form will be readily visible."
If a building is on such a steeply sloping site that the FSR and height "exceedances" are not noticeable then of course that makes a huge difference.
If the writer could point to the same calibre of "exceedances" being allowed on level sites with no "contextual" complications then I'm sure he would have.
The fact that he obviously can't is significant.
I'm sure the council and the Local Planning Panel are not really taken in by this kind of flummery.
They just don't actually say so.
The community can't afford to be taken in by it either.
Question everything.
SOURCE:
Email, 16 Oct 2022
Francis Wiffen, Woy Woy