Anthony Makerry v Inner West Council [2016] NSWLEC 1660

Procedural Posture

Class 1 Development Application Appeal Under S97 of the Environmental Planning and Assessment Act 1979 Concerning Subdivision or Boundary Adjustment of Two Residential Allotments / Determination of Appeal Against Refusal of Development Consent

Legal Issues

1. 1 ['Whether the proposed boundary adjustment resulting in lots below the minimum subdivision lot size in clause 4.1 of the Ashfield Local Environmental Plan 2013 should be approved through a clause 4.6 variation.' 'Whether compliance with the minimum subdivision lot size development standard was unreasonable or unnecessary and whether there were sufficient environmental planning grounds to justify contravention of the standard.' 'Whether the proposed development was in the public interest because it was consistent with the objectives of the minimum lot size standard and the R2 low density residential zone.' "Whether Council's draft conditions concerning future development, a s94 monetary contribution and stormwater design should be imposed or modified."]

Ratio Decidendi

The clause 4.6 request was well-founded because the proposed boundary adjustment achieved the relevant objectives of the minimum lot size control, particularly by providing infill small lot subdivision close to transport and amenities without adverse impacts, and there were sufficient environmental planning grounds to justify the variation. Compliance with the 500 square metre minimum lot size was unreasonable and unnecessary in the particular circumstances because the site already comprised two Torrens Title lots, the adjustment would make both lots capable of appropriate residential development, would promote orderly and economic use of the land, would increase housing opportunities,...

Court Disposition

Appeal upheld; clause 4.6 variation accepted; development consent granted subject to Council's conditions in Annexure A as modified.

Orders

• ['The appeal is upheld.' 'The clause 4.6 variation to compliance with the minimum subdivision lot size development standard in clause 4.1 of the Ashfield Local Environmental Plan 2013 for land at 35 Hardy Street, Ashfield is accepted.' "Development consent is granted for a boundary adjustment of the two existing...