193 Liverpool Road Ashfield Pty Ltd v Ashfield Council [2015] NSWLEC 1399

193 Liverpool Road Ashfield Pty Ltd v Ashfield Council [2015] NSWLEC 1399

The proposed boarding house development cannot rely on clause 4.3A of the Ashfield Local Environmental Plan for an exception to the maximum height because it is not a residential flat building or shop top housing. The maximum height permitted under clause 4.3(2) is 23m, and as the proposal exceeds this without a written request to vary under clause 4.6, there is no power to approve the application. As such, the appeal is dismissed and the development application refused.

Jurisdiction
Australia
Judgment Date
29 September 2015
Procedural Posture
Appeal Against Development Application Refusal / Final Judgment
Outcome
Appeal dismissed. Development application refused.
Legal Topics
['development Application' 'boarding House' 'building Height' 'vehicular Access' 'parking' 'waste Collection']
['planning and Environment'] ['development Application' 'boarding House' 'building Height' 'vehicular Access' 'parking' 'waste Collection']

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Procedural Posture

Appeal Against Development Application Refusal / Final Judgment

Legal Issues

  1. 1 ['Whether vehicular access arrangements will result in unacceptable traffic impacts' 'Whether the proposal provides adequate parking' 'Whether arrangements for waste collection are adequate' 'Whether the proposed development exceeds maximum permissible building height']

Ratio Decidendi

The proposed boarding house development cannot rely on clause 4.3A of the Ashfield Local Environmental Plan for an exception to the maximum height because it is not a residential flat building or shop top housing. The maximum height permitted under clause 4.3(2) is 23m, and as the proposal exceeds this without a written request to vary under clause 4.6, there is no power to approve the application. As such, the appeal is dismissed and the development application refused.

Court Disposition

Appeal dismissed. Development application refused.

Orders

  • ['The appeal is dismissed.' 'The development application (10.2014.261.1) for the construction of a boarding house at 193-195 Liverpool Road, Ashfield is refused.' 'The exhibits, except Exhibit 1, are returned.']