Frank and Susana Tomas v Ashfield Council [2016] NSWLEC 1183

Frank and Susana Tomas v Ashfield Council [2016] NSWLEC 1183

Development consent was granted because the proposal was permissible, complied with the height and FSR development standards in Ashfield Local Environmental Plan 2013, the fourth level had been made sufficiently recessive through setbacks and treatment, the southern and eastern facades provided acceptable articulation and landscaping, the communal open space was accessible and functional, the Ashfield Interim Development Assessment Policy was entitled to little weight, and the disputed conditions sought by the council were unnecessary or should be modified.

Jurisdiction
Australia
Judgment Date
06 May 2016
Procedural Posture
Class 1 Appeal Against Refusal of Development Application DA 10.2015.21.1 / Final Judgment and Orders
Outcome
Appeal upheld; development application approved subject to conditions in Annexure A.
Legal Topics
['development Application' 'shop Top Housing Development' 'building Height' 'communal Open Space' 'development Assessment Policy' 'development Consent Conditions']
['planning and Environment Law'] ['development Application' 'shop Top Housing Development' 'building Height' 'communal Open Space' 'development Assessment Policy' 'development Consent Conditions']

Case Brief

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Procedural Posture

Class 1 Appeal Against Refusal of Development Application DA 10.2015.21.1 / Final Judgment and Orders

Legal Issues

  1. 1 ['Whether a fourth storey was acceptable, and if so in what form.' 'Whether the proposed communal open space was acceptable.' 'Whether provision pt C1 of Ashfield Interim Development Assessment Policy applied and, if so, what provisions.' 'What weight should be given to Ashfield Interim Development Assessment Policy 2013.' 'Whether disputed consent conditions requiring a further setback, wheelchair access to each bathroom, and terrace hours should be imposed.']

Ratio Decidendi

Development consent was granted because the proposal was permissible, complied with the height and FSR development standards in Ashfield Local Environmental Plan 2013, the fourth level had been made sufficiently recessive through setbacks and treatment, the southern and eastern facades provided acceptable articulation and landscaping, the communal open space was accessible and functional, the Ashfield Interim Development Assessment Policy was entitled to little weight, and the disputed conditions sought by the council were unnecessary or should be modified.

Court Disposition

Appeal upheld; development application approved subject to conditions in Annexure A.

Orders

  • ['The appeal is upheld.' 'DA 10.2015.21.1 by Ashfield Council for the demolition of all the existing improvements and the construction of a four storey shop top housing development at 125‑131 Croydon Road, Croydon is approved subject to the conditions in Annexure A.' 'The exhibits except exhibits 1, A and B are...