Boliaris v Hurstville City Council [2014] NSWLEC 1096

Boliaris v Hurstville City Council [2014] NSWLEC 1096

Subject to the applicant preparing proper amended plans reflecting the changes agreed by the experts, the proposed boarding house could be approved because it complied with State Environmental Planning Policy - Affordable Rental Housing, its design was compatible with the local area, and it was not inconsistent with the objectives of the R2 zone; however, because the boarding rooms contained bathroom, kitchen and laundry facilities and fell within the definition of dwellings, an amended BASIX certificate and a condition requiring fulfilment of BASIX commitments were required before final orders could be made.

Jurisdiction
Australia
Judgment Date
23 May 2014
Procedural Posture
Class 1 Appeal Against Refusal of a Development Application / Directions Made to Enable Final Orders After Amended Plans, Amended BASIX Certificate and Agreed Conditions Are Filed
Outcome
Final consent was not granted at this stage; directions were made for amended plans, an amended BASIX certificate and agreed conditions to be filed so final orders could be made.
Legal Topics
['development Application' 'boarding House' 'affordable Rental Housing' 'compatibility With Local Character' 'residential Amenity' 'basix Certificate' 'conditions of Consent']
['planning and Environment Law'] ['development Application' 'boarding House' 'affordable Rental Housing' 'compatibility With Local Character' 'residential Amenity' 'basix Certificate' 'conditions of Consent']

Case Brief

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Procedural Posture

Class 1 Appeal Against Refusal of a Development Application / Directions Made to Enable Final Orders After Amended Plans, Amended BASIX Certificate and Agreed Conditions Are Filed

Legal Issues

  1. 1 ['Whether the proposed boarding house was compatible with the character of the local area under clause 30A of State Environmental Planning Policy - Affordable Rental Housing.' 'Whether the development would compromise the amenity of adjoining properties or the surrounding area.' 'Whether the proposal complied with applicable planning controls, including Hurstville Local Environmental Plan 2012 and State Environmental Planning Policy - Affordable Rental Housing.' 'Whether a BASIX certificate and condition requiring fulfilment of BASIX commitments were required.']

Ratio Decidendi

Subject to the applicant preparing proper amended plans reflecting the changes agreed by the experts, the proposed boarding house could be approved because it complied with State Environmental Planning Policy - Affordable Rental Housing, its design was compatible with the local area, and it was not inconsistent with the objectives of the R2 zone; however, because the boarding rooms contained bathroom, kitchen and laundry facilities and fell within the definition of dwellings, an amended BASIX certificate and a condition requiring fulfilment of BASIX commitments were required before final orders could be made.

Court Disposition

Final consent was not granted at this stage; directions were made for amended plans, an amended BASIX certificate and agreed conditions to be filed so final orders could be made.

Orders

  • ['The applicant is to file and serve plans and the amended BASIX certificate that reflect the details in [56] and [57] by 4pm Friday 6 June 2014.' 'The council is to file agreed conditions that reflect those plans by 4pm 13 June 2014.']