Hiep Van Nguyen & Anor v Canterbury-Bankstown Council [2017] NSWLEC 1234

Hiep Van Nguyen & Anor v Canterbury-Bankstown Council [2017] NSWLEC 1234

The appeal was dismissed because the cl 4.6 variation request did not adequately demonstrate that compliance with the minimum lot area and width standards was unreasonable or unnecessary or that sufficient environmental planning grounds justified the significant contraventions. The site's area and width were substantially below the LEP requirements, the unsuccessful attempt to buy adjoining land was not an environmental planning ground warranting the standards being set aside, the site was not isolated because amalgamation with neighbours remained possible, and approval would undermine the cl 4.1B amalgamation objective and create a precedent for compromised higher density development on...

Jurisdiction
Australia
Judgment Date
11 May 2017
Procedural Posture
Class 1 Appeal Under Section 97(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application DA 381/2016 / Final Judgment and Orders After Hearing
Outcome
Appeal dismissed; development application refused.
Legal Topics
['development Application Refusal' 'shop Top Housing' 'minimum Lot Size and Width' 'clause 4.6 Variation Request' 'site Amalgamation' 'site Isolation' 'apartment Design Guide and Development Control Plan Non Compliance' 'overdevelopment' 'site Suitability' 'precedent']
['planning and Environment Law'] ['development Application Refusal' 'shop Top Housing' 'minimum Lot Size and Width' 'clause 4.6 Variation Request' 'site Amalgamation' 'site Isolation' 'apartment Design Guide and Development Control Plan Non Compliance' 'overdevelopment' 'site Suitability' 'precedent']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 1 Appeal Under Section 97(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application DA 381/2016 / Final Judgment and Orders After Hearing

Legal Issues

  1. 1 ['Whether development consent could be granted for shop top housing on a lot that did not meet the minimum lot area and width requirements in cl 4.1B of the Bankstown Local Environmental Plan 2015.' "Whether the applicant's written request under cl 4.6 of the Bankstown Local Environmental Plan 2015 adequately demonstrated that compliance with the development standards was unreasonable or unnecessary and that there were sufficient environmental planning grounds to justify contravention." 'Whether the proposed development was in the public interest by being consistent with the objectives of the development standards and the R4 High Density Residential zone.' 'Whether the site was isolated or should instead be amalgamated with adjoining lots before higher density development proceeded.' 'Whether the non-compliances with setbacks, solar access, communal open space and landscaping reflected overdevelopment of an undersized and underwidth site.']

Ratio Decidendi

The appeal was dismissed because the cl 4.6 variation request did not adequately demonstrate that compliance with the minimum lot area and width standards was unreasonable or unnecessary or that sufficient environmental planning grounds justified the significant contraventions. The site's area and width were substantially below the LEP requirements, the unsuccessful attempt to buy adjoining land was not an environmental planning ground warranting the standards being set aside, the site was not isolated because amalgamation with neighbours remained possible, and approval would undermine the cl 4.1B amalgamation objective and create a precedent for compromised higher density development on...

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed.' 'Development application DA-381/2016 for shop top housing at 1 Cambridge Avenue, Bankstown is refused.' 'The exhibits, other than Exhibits A, B and 1, are returned.']