Assaf v Parramatta City Council [2012] NSWLEC 1254

Procedural Posture

Class 1 Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application Da/312/2011 / Principal Judgment After Hearing

Legal Issues

1. 1 ['Whether the proposed development was permissible under the State Environmental Planning Policy (Affordable Housing) 2009 as in force when the development application was lodged.' 'Whether cl 54A(2) of the amended affordable rental housing SEPP allowed the application to be determined as if the amending SEPP had not been made.' 'Whether the 2(a) Residential zone under Parramatta Local Environmental Plan 2001 was a land use zone equivalent to a named residential zone under the Standard Instrument.' 'If permissible, whether the design of the development was compatible with the character of the local area.']

Ratio Decidendi

The proposed development was prohibited under the Parramatta Local Environmental Plan 2001 and Parramatta Local Environmental Plan 2011. It depended for permissibility on Part 2 Div 1 of the AH SEPP as in force before the 2011 amendment. The 2(a) Residential zone under the 2001 LEP was not a land use zone in which equivalent land uses were permitted to those in the named Standard Instrument zones, because there were significant numerical and qualitative differences between the sets of permissible uses. Therefore cl 10 of the pre-amendment AH SEPP was not satisfied, Part 2 Div 1 did not apply, cl 54A(2) was not met, and consent could not be granted.

Court Disposition

Appeal dismissed; development application refused.

Orders

• ['The appeal is dismissed.' 'Development Application DA/312/2011 for demolition, tree removal and construction of multi unit housing at 2 Mayfield Street Wentworthville, is refused.' 'The exhibits are returned except for exhibits A and 2.']