Kasif v Georges River Council [2020] NSWLEC 1068

Kasif v Georges River Council [2020] NSWLEC 1068

The Court upheld the cl 4.6 request because the site was isolated and could not be enlarged, Council had previously facilitated future redevelopment by requiring a right of carriageway for basement access, a residential flat building was accepted as appropriate for the R3 zone, the proposal achieved the planned medium density outcome without unreasonable impacts, and strict compliance would sterilise or thwart redevelopment of the site. On the merits, the Court found that the compliant and below-maximum height and FSR, recessed upper level, absence of unacceptable amenity impacts, and transition to new LEP controls made the built form acceptable despite inconsistency with older adjoining...

Jurisdiction
Australia
Judgment Date
19 February 2020
Procedural Posture
Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of Development Application Da2018/0441 / Principal Judgment After Hearing
Outcome
Appeal upheld; development application approved subject to conditions.
Legal Topics
['development Application Appeal' 'residential Flat Building' 'clause 4.6 Variation' 'minimum Lot Size' 'isolated Site' 'streetscape and Local Character' 'communal Open Space' 'apartment Design Guide']
['planning and Environment' 'development Consent' 'land Use'] ['development Application Appeal' 'residential Flat Building' 'clause 4.6 Variation' 'minimum Lot Size' 'isolated Site' 'streetscape and Local Character' 'communal Open Space' 'apartment Design Guide']

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Procedural Posture

Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of Development Application Da2018/0441 / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the clause 4.6 written request justified contravention of the minimum lot size standard in cl 4.1A of the Kogarah Local Environmental Plan 2012.' 'Whether the proposed height, bulk, scale and design of the residential flat building were appropriate for the isolated, narrow site and compatible with the streetscape and future local character.' 'Whether communal open space should be provided on site notwithstanding the small lot and six-apartment scale of the development.' 'Whether disputed conditions requiring redesign, rooftop communal open space, relocation or increased setbacks should be imposed.']

Ratio Decidendi

The Court upheld the cl 4.6 request because the site was isolated and could not be enlarged, Council had previously facilitated future redevelopment by requiring a right of carriageway for basement access, a residential flat building was accepted as appropriate for the R3 zone, the proposal achieved the planned medium density outcome without unreasonable impacts, and strict compliance would sterilise or thwart redevelopment of the site. On the merits, the Court found that the compliant and below-maximum height and FSR, recessed upper level, absence of unacceptable amenity impacts, and transition to new LEP controls made the built form acceptable despite inconsistency with older adjoining...

Court Disposition

Appeal upheld; development application approved subject to conditions.

Orders

  • ['Leave is granted for the applicant to rely on amended plans.' 'The clause 4.6 written request for a variation to the minimum lot size is upheld.' 'The appeal is upheld.' 'Development Application DA2018/0441 for the demolition of existing structures and construction of a residential flat building at 22 Empress...