Cohesive Planning v Inner West Council [2023] NSWLEC 1047

Cohesive Planning v Inner West Council [2023] NSWLEC 1047

The proposal satisfied cl 5.21 of the Ashfield Local Environmental Plan 2013 because the expert agreements established that it would not adversely affect flood behaviour or detrimentally increase flood affectation of other properties, the ground floor finished floor level was at the Flood Planning Level, the first floor provided appropriate shelter-in-place refuge, the development incorporated flood-compatible materials and structural requirements, electrical services were to be placed above the Flood Planning Level or waterproofed, the proposal was supported by a Flood Assessment and Emergency Response Plan, and it improved flood safety compared to the existing dwelling. The Commissioner...

Jurisdiction
Australia
Judgment Date
07 February 2023
Procedural Posture
Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. 2022/0019 / Hearing Held Forthwith After Conciliation Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated; Principal Judgment
Outcome
Appeal upheld; development consent granted subject to conditions.
Legal Topics
['development Application Appeal' 'dual Occupancy Development' 'flood Hazard and Flood Planning' 'compatibility With Flood Function and Behaviour' 'conditions of Consent']
['environmental Planning and Assessment' 'development Consent' 'land and Environment Court Proceedings'] ['development Application Appeal' 'dual Occupancy Development' 'flood Hazard and Flood Planning' 'compatibility With Flood Function and Behaviour' 'conditions of Consent']

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Procedural Posture

Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. 2022/0019 / Hearing Held Forthwith After Conciliation Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated; Principal Judgment

Legal Issues

  1. 1 ['Whether the proposed dual occupancy development is compatible with the flood hazard of the land under cl 5.21 of the Ashfield Local Environmental Plan 2013.' 'Whether intensification of the site would result in an unacceptable risk to life and property due to flooding.' 'Whether the proposal would adversely affect flood behaviour or detrimentally increase flood affectation of other properties.' 'Whether the disputed Project Arborist Certification condition should be imposed.']

Ratio Decidendi

The proposal satisfied cl 5.21 of the Ashfield Local Environmental Plan 2013 because the expert agreements established that it would not adversely affect flood behaviour or detrimentally increase flood affectation of other properties, the ground floor finished floor level was at the Flood Planning Level, the first floor provided appropriate shelter-in-place refuge, the development incorporated flood-compatible materials and structural requirements, electrical services were to be placed above the Flood Planning Level or waterproofed, the proposal was supported by a Flood Assessment and Emergency Response Plan, and it improved flood safety compared to the existing dwelling. The Commissioner...

Court Disposition

Appeal upheld; development consent granted subject to conditions.

Orders

  • ['The Applicant is granted leave to amend the application to rely on the amended architectural drawings listed in condition 1 of the Conditions of Consent at Annexure A.' 'The appeal is upheld.' 'Development Application No. 2022/0019 for the demolition of the existing dwelling and construction of a dual occupancy...