Giacometti v Inner West Council [2021] NSWLEC 1438

Giacometti v Inner West Council [2021] NSWLEC 1438

The Court dismissed the appeal because the proposed conversion of one dwelling into three residential units intensified use on a Flood Control Lot affected by high hazard flood risk, with Unit 1 and the principal entry below the flood planning level. The Court relied on Council's Flood Certificate in the absence of...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
02 August 2021
Procedural Posture
Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application D/2019/227 / Principal Judgment After Hearing
Outcome
Appeal dismissed; development application refused.
Legal Topics
['development Application for Alterations and Additions to Convert Dwelling House Into Three Residential Units' 'flood Control Lot' 'flood Risk to Life and Property' 'flood Planning Level' 'leichhardt Local Environmental Plan 2013 Cl 5.21' 'leichhardt Development Control Plan 2013 Section E1.3.1' 'public Interest and Development Precedent']
['planning and Environment Law' 'development Consent' 'flood Planning'] ['development Application for Alterations and Additions to Convert Dwelling House Into Three Residential Units' 'flood Control Lot' 'flood Risk to Life and Property' 'flood Planning Level' 'leichhardt Local Environmental Plan 2013 Cl 5.21' 'leichhardt Development Control Plan 2013 Section E1.3.1' 'public Interest and Development Precedent']

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Procedural Posture

Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application D/2019/227 / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether development consent could be granted for alterations and additions to an existing dwelling house to facilitate conversion into three separate residential units on a Flood Control Lot.' 'Whether the proposed development minimised flood risk to life and property and was compatible with the flood function and behaviour of the land under Leichhardt Local Environmental Plan 2013 cl 5.21.' 'Whether proposed flood mitigation measures, including flood barriers, waterproofing, structural reinforcement and shelter in place, were acceptable alternatives to raising all floor levels above the flood planning level.' 'Whether approval would set an undesirable precedent and be contrary to the public interest.']

Ratio Decidendi

The Court dismissed the appeal because the proposed conversion of one dwelling into three residential units intensified use on a Flood Control Lot affected by high hazard flood risk, with Unit 1 and the principal entry below the flood planning level. The Court relied on Council's Flood Certificate in the absence of alternative expert evidence and accepted the Respondent's expert evidence that reliance on flood barriers and future occupant maintenance and operation created a real and increased risk to life and property. The proposal was not compatible with the flood function and behaviour of the land, did not incorporate appropriate measures to manage risk to life, did not enable safe...

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed.' 'Development application D/2019/227 for alterations and additions to existing dwelling house to facilitate conversion into three (3) separate residential units, and associated works, including fencing and landscaping works and demolition of a shed at 64 Hubert Street, Leichhardt, is...