Botany Bay City Council v Botany Development Pty Ltd (No 2) [2015] NSWLEC 55

Botany Bay City Council v Botany Development Pty Ltd (No 2) [2015] NSWLEC 55

The Commissioner erred in concluding that the Rules of Thumb supplied the relevant apartment area minimums for cl 30A(1)(b) of SEPP 65 and therefore that unit size could not be a reason for refusal. Properly construed, cl 30A(1)(b) refers to the recommended internal and external areas for the relevant apartment type in the table on p69 of the Residential Flat Design Code, because only that table identifies both internal and external areas and relevant apartment types. As not all apartments met those table areas, cl 30A(1)(b) was not engaged and cl 4C.5.1 of the DCP was a relevant consideration that had to be considered under s 79C(1)(a)(iii). The appeal was therefore upheld and the Class...

Jurisdiction
Australia
Judgment Date
09 April 2015
Procedural Posture
Class 1 S 56 a Appeal Under the Land and Environment Court Act 1979 From a Decision of a Commissioner / Principal Judgment on Appeal From Commissioner Brown's Decision in [2014] NSWLEC 1073
Outcome
The Council's s 56A appeal was upheld; the Class 1 appeal was remitted for further hearing before Brown C; costs were ordered in favour of the Appellant unless the Respondent sought a different order by Notice of Motion.
Legal Topics
['residential Flat Development' 'development Consent' 'development Control Plans' 'state Environmental Planning Policy No 65' 'residential Flat Design Code' 'mandatory Relevant Considerations' 'apartment Area and Unit Size']
['planning and Environment Law' 'administrative Law' 'statutory Interpretation'] ['residential Flat Development' 'development Consent' 'development Control Plans' 'state Environmental Planning Policy No 65' 'residential Flat Design Code' 'mandatory Relevant Considerations' 'apartment Area and Unit Size']

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Procedural Posture

Class 1 S 56 a Appeal Under the Land and Environment Court Act 1979 From a Decision of a Commissioner / Principal Judgment on Appeal From Commissioner Brown's Decision in [2014] NSWLEC 1073

Legal Issues

  1. 1 ['Whether the Commissioner failed to take into account cl 4C.5.1 of The City of Botany Bay Development Control Plan 2013 as a mandatory relevant consideration under s 79C(1)(a)(iii) of the Environmental Planning and Assessment Act 1979.' 'Whether cl 6 of State Environmental Planning Policy No 65 gave the SEPP precedence over the DCP.' 'Whether cl 30A(1)(b) of State Environmental Planning Policy No 65 referred to the apartment areas in the table on p69 of the Residential Flat Design Code or to the Rules of Thumb.' 'Whether apartment size could be a ground for refusing the development application.']

Ratio Decidendi

The Commissioner erred in concluding that the Rules of Thumb supplied the relevant apartment area minimums for cl 30A(1)(b) of SEPP 65 and therefore that unit size could not be a reason for refusal. Properly construed, cl 30A(1)(b) refers to the recommended internal and external areas for the relevant apartment type in the table on p69 of the Residential Flat Design Code, because only that table identifies both internal and external areas and relevant apartment types. As not all apartments met those table areas, cl 30A(1)(b) was not engaged and cl 4C.5.1 of the DCP was a relevant consideration that had to be considered under s 79C(1)(a)(iii). The appeal was therefore upheld and the Class...

Court Disposition

The Council's s 56A appeal was upheld; the Class 1 appeal was remitted for further hearing before Brown C; costs were ordered in favour of the Appellant unless the Respondent sought a different order by Notice of Motion.

Orders

  • ["The Council's s 56A appeal is upheld." 'The Class 1 appeal is remitted for further hearing before Brown C, in order for him to determine it in light of these reasons, and the parties are to approach the Registrar within 7 days for a hearing date.' "Unless the Respondent by Notice of Motion filed within 14 days...