Al Maha Pty Ltd v Marrickville Council [2013] NSWLEC 1072

Al Maha Pty Ltd v Marrickville Council [2013] NSWLEC 1072

Consent can be granted for development that exceeds the FSR standard under cl 4.6 MLEP 2011 if the objectives of the FSR control and zone are met, appropriate environmental planning grounds exist, and impacts of additional density are acceptable within the planning framework. Non-compliance with DCP storey control is not fatal if LEP height objectives are met. However, the secondary driveway must be deleted to ensure amenity is protected and disabled access must be provided from the pocket park to Alice Lane.

Jurisdiction
Australia
Judgment Date
26 April 2013
Procedural Posture
Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 / Judgment After Hearing and Further Submissions; Orders to Be Finalised Pending Amended Plans and Agreed Conditions
Outcome
Development application approved subject to filing of amended plans (removing secondary driveway, providing disabled access) and agreed conditions; final orders to be made after compliance with directions.
Legal Topics
['development Applications' 'floor Space Ratio Standards' 'development Control Plans' 'height of Buildings' 'parking and Access' 'mixed Use Development']
['environmental Law' 'planning Law'] ['development Applications' 'floor Space Ratio Standards' 'development Control Plans' 'height of Buildings' 'parking and Access' 'mixed Use Development']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 / Judgment After Hearing and Further Submissions; Orders to Be Finalised Pending Amended Plans and Agreed Conditions

Legal Issues

  1. 1 ['Whether development application non-compliant with FSR standard should be approved under cl 4.6 of MLEP 2011' 'Whether number of storeys control in DCP is inconsistent or incompatible with height control in LEP' 'Appropriateness of secondary driveway on Pearl Street' 'Adequacy of parking and traffic arrangements for the development']

Ratio Decidendi

Consent can be granted for development that exceeds the FSR standard under cl 4.6 MLEP 2011 if the objectives of the FSR control and zone are met, appropriate environmental planning grounds exist, and impacts of additional density are acceptable within the planning framework. Non-compliance with DCP storey control is not fatal if LEP height objectives are met. However, the secondary driveway must be deleted to ensure amenity is protected and disabled access must be provided from the pocket park to Alice Lane.

Court Disposition

Development application approved subject to filing of amended plans (removing secondary driveway, providing disabled access) and agreed conditions; final orders to be made after compliance with directions.

Orders

  • ['Applicant to file and serve plans incorporating required changes by 10 May 2013.' 'Parties to file agreed conditions by 17 May 2013.' 'Final orders to be issued in Chambers following compliance.']