Basil Doumit v Canterbury - Bankstown Council [2018] NSWLEC 1028

Basil Doumit v Canterbury - Bankstown Council [2018] NSWLEC 1028

Consent was granted because the amended development was permissible as shop top housing, the applicant's cl 4.6 request adequately justified contravention of the FSR standard, the proposal was consistent with the B2 zone objectives and the objectives of the FSR standard, and the remaining impacts concerning Wilson Avenue setbacks, overshadowing, parking, loading and accessible parking were acceptable or addressed by amended plans and conditions. The Court gave reduced weight to strict numerical FSR compliance in light of the site-specific planning history and focused on the built form and impacts produced by the applicable suite of controls.

Jurisdiction
Australia
Judgment Date
30 January 2018
Procedural Posture
Class 1 Development Appeal Against Refusal of Development Consent / Final Judgment and Orders After Hearing; Amended Plans Considered
Outcome
Appeal upheld; development consent granted subject to conditions; applicant to pay respondent's costs arising from amended plans as agreed or assessed.
Legal Topics
['development Appeal' 'shop Top Housing Permissibility' 'clause 4.6 Variation to Floor Space Ratio Development Standard' 'bulk and Scale' 'setbacks' 'overshadowing and Solar Access' 'parking and Loading' 'accessible Parking' 'costs Arising From Amended Plans']
['planning and Environment Law' 'development Consent' 'land Use Planning'] ['development Appeal' 'shop Top Housing Permissibility' 'clause 4.6 Variation to Floor Space Ratio Development Standard' 'bulk and Scale' 'setbacks' 'overshadowing and Solar Access' 'parking and Loading' 'accessible Parking' 'costs Arising From Amended Plans']

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Procedural Posture

Class 1 Development Appeal Against Refusal of Development Consent / Final Judgment and Orders After Hearing; Amended Plans Considered

Legal Issues

  1. 1 ['Whether the proposed development was permissible as shop top housing in the B2 Local Centre zone.' 'Whether the request to vary the floor space ratio development standard under cl 4.6 of Canterbury Local Environmental Plan 2012 was well founded and worthy of support.' 'Whether the proposed setback variation to Wilson Avenue was acceptable.' 'Whether overshadowing impacts on the common paved outdoor area at 506 Burwood Road were acceptable.' 'Whether the development provided appropriate parking, loading and accessible parking for the residential and commercial uses.' 'Whether costs should arise from non-minor amended plans under the Environmental Planning and Assessment Act 1979.']

Ratio Decidendi

Consent was granted because the amended development was permissible as shop top housing, the applicant's cl 4.6 request adequately justified contravention of the FSR standard, the proposal was consistent with the B2 zone objectives and the objectives of the FSR standard, and the remaining impacts concerning Wilson Avenue setbacks, overshadowing, parking, loading and accessible parking were acceptable or addressed by amended plans and conditions. The Court gave reduced weight to strict numerical FSR compliance in light of the site-specific planning history and focused on the built form and impacts produced by the applicable suite of controls.

Court Disposition

Appeal upheld; development consent granted subject to conditions; applicant to pay respondent's costs arising from amended plans as agreed or assessed.

Orders

  • ['The applicant is granted leave to rely on amended plans as listed in Condition 5 of Annexure A.' "Pursuant to section 8.15 (previously 97B) of the Environmental Planning and Assessment Act 1979 (NSW), the applicant is to pay the respondent's costs as agreed or assessed arising from the amended plans referenced in...