Al Maha Pty Ltd v Strathfield Municipal Council [2017] NSWLEC 1649

Al Maha Pty Ltd v Strathfield Municipal Council [2017] NSWLEC 1649

The appeal was upheld because, although aspects of the proposal departed from the development control plan, the front setbacks were acceptable in the existing and anticipated streetscape, the height variation was sufficiently justified and not in contention, the solar access departures were justified by the site's orientation and configuration, and amended plans and agreed conditions addressed the unacceptable floor area of Townhouses 1 to 5. The Court was satisfied that development consent should be granted subject to the conditions in Annexure A.

Jurisdiction
Australia
Judgment Date
20 November 2017
Procedural Posture
Class 1 Appeal Against Refusal of Development Application / Final Orders Granting Development Consent Subject to Conditions
Outcome
Appeal upheld; development application approved subject to conditions.
Legal Topics
['development Application Refusal Appeal' 'multi Dwelling Housing' 'front Setback' 'minimum Unit Size' 'solar Access' 'clause 4.6 Variation' 'development Control Plan Compliance']
['planning and Environment Law' 'development Consent'] ['development Application Refusal Appeal' 'multi Dwelling Housing' 'front Setback' 'minimum Unit Size' 'solar Access' 'clause 4.6 Variation' 'development Control Plan Compliance']

Case Brief

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Procedural Posture

Class 1 Appeal Against Refusal of Development Application / Final Orders Granting Development Consent Subject to Conditions

Legal Issues

  1. 1 ['Whether the proposed front setbacks were acceptable despite non-compliance with the 12 metre combined setback requirement in Strathfield Consolidated Development Control Plan 2005.' 'Whether the internal areas of the proposed townhouses, particularly Townhouses 1 to 5, were acceptable having regard to the minimum area controls in Strathfield Consolidated Development Control Plan 2005.' 'Whether the proposed development provided acceptable solar access to living areas and private open space despite departures from the preferred solar access standards.' 'Whether development consent should be granted subject to amended plans and conditions.']

Ratio Decidendi

The appeal was upheld because, although aspects of the proposal departed from the development control plan, the front setbacks were acceptable in the existing and anticipated streetscape, the height variation was sufficiently justified and not in contention, the solar access departures were justified by the site's orientation and configuration, and amended plans and agreed conditions addressed the unacceptable floor area of Townhouses 1 to 5. The Court was satisfied that development consent should be granted subject to the conditions in Annexure A.

Court Disposition

Appeal upheld; development application approved subject to conditions.

Orders

  • ['The appeal is upheld.' 'DA2017/021 for the demolition of existing site structures and construction of a part two storey and part three storey town house development at 12 - 26 Telopea Avenue, Homebush West is approved subject to the conditions in Annexure A.' 'The exhibits are returned with the exception of...