Chen v Auburn City Council [2015] NSWLEC 1379

Chen v Auburn City Council [2015] NSWLEC 1379

The garage had to be included in the total floor area of the secondary dwelling. There was no specific requirement in the applicable LEP or DCP for on-site parking for a secondary dwelling, so the garage was not excluded under the gross floor area definition. Alternatively, on the ordinary meaning of total floor area in cl 22(3)(b) of the SEPPARH, the garage formed part of the secondary dwelling. Because including the garage made the secondary dwelling 91.2 square metres, exceeding the 60 square metre limit, the modification application could not be approved.

Jurisdiction
Australia
Judgment Date
18 September 2015
Procedural Posture
Class 1 Appeal Under S 97 AA of the Environmental Planning and Assessment Act 1979 Against Refusal of an Application Under S 96(1 A) to Modify a Development Consent / Hearing Following Termination of a Conciliation Conference Under S 34 AA of the Land and Environment Court Act 1979
Outcome
Appeal dismissed; application to modify Development Consent No 174/2014 refused.
Legal Topics
['secondary Dwelling' 'state Environmental Planning Policy (affordable Rental Housing) 2009' 'total Floor Area' 'on Site Parking' 'auburn Local Environmental Plan 2010' 'development Control Plan']
['planning and Environment' 'development Consent Modification'] ['secondary Dwelling' 'state Environmental Planning Policy (affordable Rental Housing) 2009' 'total Floor Area' 'on Site Parking' 'auburn Local Environmental Plan 2010' 'development Control Plan']

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Procedural Posture

Class 1 Appeal Under S 97 AA of the Environmental Planning and Assessment Act 1979 Against Refusal of an Application Under S 96(1 A) to Modify a Development Consent / Hearing Following Termination of a Conciliation Conference Under S 34 AA of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether the Court had power to approve the modification application where inclusion of a garage for use by the secondary dwelling would make the total floor area exceed 60 square metres under cl 22(3)(b) of State Environmental Planning Policy (Affordable Rental Housing) 2009.' 'Whether the proposed modification would result in a ground floor dwelling that was not subservient or secondary to the principal dwelling, contrary to cl 22(2) of State Environmental Planning Policy (Affordable Rental Housing) 2009.']

Ratio Decidendi

The garage had to be included in the total floor area of the secondary dwelling. There was no specific requirement in the applicable LEP or DCP for on-site parking for a secondary dwelling, so the garage was not excluded under the gross floor area definition. Alternatively, on the ordinary meaning of total floor area in cl 22(3)(b) of the SEPPARH, the garage formed part of the secondary dwelling. Because including the garage made the secondary dwelling 91.2 square metres, exceeding the 60 square metre limit, the modification application could not be approved.

Court Disposition

Appeal dismissed; application to modify Development Consent No 174/2014 refused.

Orders

  • ['The appeal is dismissed.' 'The application to modify Development Consent No 174/2014 granted by the Council on 26 September 2014 for a secondary dwelling at 2 Eric Crescent Lidcombe is refused.' 'The exhibits are returned except for exhibits 1, 3, A and B.']