Al Maha Pty Ltd v Marrickville Council [2015] NSWLEC 1494

Al Maha Pty Ltd v Marrickville Council [2015] NSWLEC 1494

The application fails because the variation to the FSR development standard is inconsistent with the zone objective to constrain parking and restrict car use and does not satisfy the criteria in Clause 4.6; there are not sufficient planning grounds to support the level of non-compliance, and the proposed bulk, scale, and amenity impacts weigh against granting approval.

Jurisdiction
Australia
Judgment Date
30 November 2015
Procedural Posture
Appeal Against Refusal of Development Application / Judgment on Merits of Class 1 Development Appeal
Outcome
Appeal dismissed; development application refused.
Legal Topics
['development Application' 'building Height Standards' 'floor Space Ratio' 'clause 4.6 Written Request' 'marrickville Local Environmental Plan 2011' 'development Control Plan Compliance']
['planning and Environment Law'] ['development Application' 'building Height Standards' 'floor Space Ratio' 'clause 4.6 Written Request' 'marrickville Local Environmental Plan 2011' 'development Control Plan Compliance']

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Procedural Posture

Appeal Against Refusal of Development Application / Judgment on Merits of Class 1 Development Appeal

Legal Issues

  1. 1 ['Whether the proposed development, including a 6th storey and additional 10 units, merits approval given non-compliance with building height and floor space ratio (FSR) standards' 'Whether a Clause 4.6 written request adequately justifies variation of development standards in this case' 'Whether the proposal is consistent with the objectives of the relevant planning instruments and the desired future character of the area']

Ratio Decidendi

The application fails because the variation to the FSR development standard is inconsistent with the zone objective to constrain parking and restrict car use and does not satisfy the criteria in Clause 4.6; there are not sufficient planning grounds to support the level of non-compliance, and the proposed bulk, scale, and amenity impacts weigh against granting approval.

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed.' 'Development Application No DA 201500105 for the addition of a 6th storey to accommodate 10 residential units, together with an additional 10 car parking spaces at No 32 - 72 Alice Street, Newtown is refused.' 'The exhibits may be returned except for 3, 5, and A.']