Emag Apartments Pty Limited v Inner West Council [2022] NSWLEC 1042

Emag Apartments Pty Limited v Inner West Council [2022] NSWLEC 1042

The Court upheld the cl 4.6 written request because the proposed density and bulk substantially conformed to the desired future character in the Marrickville Development Control Plan 2011, the FSR exceedance did not create unacceptable additional impacts or visible bulk, and the proposal was consistent with the...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
01 February 2022
Procedural Posture
Class 1 Development Appeal / Appeal From Refusal of Development Application No. Da/2020/0578
Outcome
Appeal upheld; development consent granted subject to conditions.
Legal Topics
['boarding House Development' 'floor Space Ratio Development Standard' 'cl 4.6 Variation Request' 'state Environmental Planning Policy (housing) 2021' 'state Environmental Planning Policy (affordable Rental Housing) 2009' 'character Compatibility' 'heritage Impacts' 'rail Corridor Impacts' 'remediation of Land']
['environmental Planning and Assessment' 'development Consent' 'land and Environment Court Proceedings'] ['boarding House Development' 'floor Space Ratio Development Standard' 'cl 4.6 Variation Request' 'state Environmental Planning Policy (housing) 2021' 'state Environmental Planning Policy (affordable Rental Housing) 2009' 'character Compatibility' 'heritage Impacts' 'rail Corridor Impacts' 'remediation of Land']

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Summary, issues, holding and outcome

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Procedural Posture

Class 1 Development Appeal / Appeal From Refusal of Development Application No. Da/2020/0578

Legal Issues

  1. 1 ['Whether the exceedance of the floor space ratio development standard was justified pursuant to cl 4.6 of the Marrickville Local Environmental Plan 2011.' 'Whether the character of the proposed development was compatible with the local area.' 'Whether the Court should consider the State Environmental Planning Policy (Housing) 2021 as well as the State Environmental Planning Policy (Affordable Rental Housing) 2009.' 'Whether the proposed development warranted development consent subject to conditions.']

Ratio Decidendi

The Court upheld the cl 4.6 written request because the proposed density and bulk substantially conformed to the desired future character in the Marrickville Development Control Plan 2011, the FSR exceedance did not create unacceptable additional impacts or visible bulk, and the proposal was consistent with the objectives of the FSR standard and the B2 Local Centre zone. The Court also found the amended design compatible with the local area under cl 30A of the SEPP ARH, accepted that relevant statutory considerations including heritage, earthworks, rail noise and remediation were satisfied, and therefore granted development consent subject to conditions.

Court Disposition

Appeal upheld; development consent granted subject to conditions.

Orders

  • ["The Applicant's written request to vary the floor space ratio standard at cl 4.4 of the Marrickville Local Environmental Plan 2011, pursuant to cl 4.6 of the Marrickville Local Environmental Plan 2011, is upheld." "The Applicant is to pay the Respondent's costs thrown away as agreed or assessed pursuant to s...