Boustany v Canterbury-Bankstown Council [2018] NSWLEC 1531

Boustany v Canterbury-Bankstown Council [2018] NSWLEC 1531

Despite the DCP's prohibition, the proposed basement car parking achieves the objectives of the performance standard, is visually compatible with adjacent buildings and streetscape, meets LEP and DCP objectives, and merits a flexible approach under s. 4.15(3A)(b) of the EP&A Act; therefore, consent should be granted.

Parties
Applicant: Elie Boustany; Respondent: Canterbury-Bankstown Council
Jurisdiction
Australia
Judgment Date
11 October 2018
Procedural Posture
Appeal Against Council Refusal of Development Consent / Final Determination
Outcome
Appeal upheld; development application approved
Legal Topics
Development Application, Dual Occupancy, Basement Parking, Planning Controls, Local Environmental Plan, Development Control Plan, Flexible Application of Planning Controls
Planning and Environment Development Application Dual Occupancy Basement Parking Planning Controls Local Environmental Plan Development Control Plan Flexible Application of Planning Controls

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Parties

Elie Boustany

Applicant

Canterbury-Bankstown Council

Respondent

Procedural Posture

Appeal Against Council Refusal of Development Consent / Final Determination

Legal Issues

  1. 1 Whether basement car parking is permissible in dual occupancy development under the Canterbury Development Control Plan 2012
  2. 2 Whether a flexible approach can be taken to allow basement parking contrary to the DCP prohibition
  3. 3 Whether the development is compatible with objectives of the Local Environmental Plan and DCP

Ratio Decidendi

Despite the DCP's prohibition, the proposed basement car parking achieves the objectives of the performance standard, is visually compatible with adjacent buildings and streetscape, meets LEP and DCP objectives, and merits a flexible approach under s. 4.15(3A)(b) of the EP&A Act; therefore, consent should be granted.

Court Disposition

Appeal upheld; development application approved

Orders

  • Leave granted to amend Development Application No. DA-28/2018 and rely on amended plans detailed in Condition 1 of Annexure A
  • No orders as to costs