Ceerose Pty Ltd v Inner West Council [2017] NSWLEC 1289

Ceerose Pty Ltd v Inner West Council [2017] NSWLEC 1289

The clause 4.6 variation request was not sustained because the proposed development, particularly Tower B and the resulting FSR, was not compatible with the desired future character of the area in relation to bulk, scale and form, did not satisfy cl 4.4A(3)(c), and did not adequately demonstrate that compliance was unreasonable or unnecessary or that sufficient environmental planning grounds justified the contravention. The Court also found an unacceptable detrimental impact on the Parramatta Road Conservation Area under cl 5.10(4). Because these preconditions to consent were not met, the Court had no power to grant development consent and dismissed the appeal.

Jurisdiction
Australia
Judgment Date
08 June 2017
Procedural Posture
Class 1 Development Appeal / Appeal Against Deemed Refusal of Development Application Da/2016/242
Outcome
Appeal dismissed; development application refused.
Legal Topics
['development Consent' 'clause 4.6 Variation Request' 'floor Space Ratio' 'desired Future Character' 'heritage Conservation Area' 'parramatta Road Urban Transformation Strategy' 'residential Amenity' 'solar Access']
['environmental Planning and Development' 'land and Environment Court'] ['development Consent' 'clause 4.6 Variation Request' 'floor Space Ratio' 'desired Future Character' 'heritage Conservation Area' 'parramatta Road Urban Transformation Strategy' 'residential Amenity' 'solar Access']

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Procedural Posture

Class 1 Development Appeal / Appeal Against Deemed Refusal of Development Application Da/2016/242

Legal Issues

  1. 1 ['Whether the development was compatible with the desired future character of the area in relation to its bulk, form, uses and scale under cl 4.4A of the Leichhardt Local Environmental Plan 2013.' 'Whether the requested variation to the floor space ratio development standard under cl 4.6 of the Leichhardt Local Environmental Plan 2013 was justified.' 'Whether the proposed development would have an unacceptable impact on the Parramatta Road Conservation Area under cl 5.10 of the Leichhardt Local Environmental Plan 2013.' 'Whether solar access for future residents was reasonable.' 'Whether impacts on 303 Parramatta Road Leichhardt were acceptable.' 'Whether proposed vehicular access and manoeuvrability into the loading dock were satisfactory.']

Ratio Decidendi

The clause 4.6 variation request was not sustained because the proposed development, particularly Tower B and the resulting FSR, was not compatible with the desired future character of the area in relation to bulk, scale and form, did not satisfy cl 4.4A(3)(c), and did not adequately demonstrate that compliance was unreasonable or unnecessary or that sufficient environmental planning grounds justified the contravention. The Court also found an unacceptable detrimental impact on the Parramatta Road Conservation Area under cl 5.10(4). Because these preconditions to consent were not met, the Court had no power to grant development consent and dismissed the appeal.

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The variation request pursuant to cl 4.6 of the Leichhardt Local Environmental Plan 2013 is not sustained;' 'The appeal is dismissed;' 'Development application DA/2016/242 for the demolition of all existing buildings, and construction of a mixed-use housing development comprising 42 apartments above ground floor...