Aristocratic Property Developments v City of Sydney Council [2011] NSWLEC 1328

Aristocratic Property Developments v City of Sydney Council [2011] NSWLEC 1328

The proposal merited conditional consent because the principal issue was safety for occupants using the six car spaces fronting Jones Lane in a flood, and the Court was prepared to rely on the experts' general agreement that an acceptable level of risk would be provided if the car park doors were removed or designed to permit through-flow of flood waters; the evidence also showed floodwaters would rise relatively slowly and would not reach high velocity flows, and the Flood Prone Land Policy did not require sterilisation of the land.

Jurisdiction
Australia
Judgment Date
11 November 2011
Procedural Posture
Class 1 Development Application Appeal / Final Judgment After S 34 Conference Terminated
Outcome
The appeal was upheld and development consent was granted subject to conditions and amendments.
Legal Topics
['development Consent' 'flooding' 'flood Prone Land' 'car Parking Design' 'deferred Commencement Conditions']
['planning and Environment Law'] ['development Consent' 'flooding' 'flood Prone Land' 'car Parking Design' 'deferred Commencement Conditions']

Case Brief

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Procedural Posture

Class 1 Development Application Appeal / Final Judgment After S 34 Conference Terminated

Legal Issues

  1. 1 ['Whether development consent should be granted for the proposed industrial building despite flood risk affecting six car parking spaces fronting Jones Lane.' 'Whether conditions requiring design modifications, including removal of roller doors or through-flow of flood waters, would reduce flood risk to an acceptable level.' 'Whether modifications could be approved by Council or by a Private Certifier with appropriate qualifications.']

Ratio Decidendi

The proposal merited conditional consent because the principal issue was safety for occupants using the six car spaces fronting Jones Lane in a flood, and the Court was prepared to rely on the experts' general agreement that an acceptable level of risk would be provided if the car park doors were removed or designed to permit through-flow of flood waters; the evidence also showed floodwaters would rise relatively slowly and would not reach high velocity flows, and the Flood Prone Land Policy did not require sterilisation of the land.

Court Disposition

The appeal was upheld and development consent was granted subject to conditions and amendments.

Orders

  • ['The appeal is upheld.' 'Development Consent is granted to the Development Application D/2010/1408 for the site at 108 Dunning Avenue, ROSEBERY subject to the conditions in Annexure A with amendments.' 'Condition (2)(b) is to read: "That the egress/ingress door leading from the lower ground floor parking area be...