Form Architects (Aus) Pty Ltd v Hunter's Hill Council [2019] NSWLEC 1120

Form Architects (Aus) Pty Ltd v Hunter's Hill Council [2019] NSWLEC 1120

The Court was satisfied that both cl 4.6 written requests adequately addressed why compliance with the landscaped area and floor space ratio standards was unreasonable or unnecessary and why sufficient environmental planning grounds justified the contraventions. The proposed development was consistent with the objectives of the standards and the R2 Low Density Residential zone, would improve the built form and landscaping, and would not create unacceptable visual, heritage or amenity impacts. The Court therefore had power to grant consent and considered the agreed orders lawful and appropriate on the merits.

Jurisdiction
Australia
Judgment Date
25 March 2019
Procedural Posture
Class 1 Appeals Concerning Refusal of a Development Application and Refusal to Issue a Building Information Certificate / Final Consent Orders After Hearing
Outcome
Both appeals were upheld. The cl 4.6 requests were upheld, deferred commencement development consent was granted for the proposed new works, and demolition works were ordered in connection with the Building Information Certificate appeal.
Legal Topics
['clause 4.6 Variation Requests' 'floor Space Ratio Development Standard' 'landscaped Area Development Standard' 'deferred Commencement Development Consent' 'foreshore and Riverfront Development' 'conservation Area' 'demolition Works']
['environmental Planning and Assessment' 'development Consent' 'building Information Certificate' 'land and Environment Court Procedure'] ['clause 4.6 Variation Requests' 'floor Space Ratio Development Standard' 'landscaped Area Development Standard' 'deferred Commencement Development Consent' 'foreshore and Riverfront Development' 'conservation Area' 'demolition Works']

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Procedural Posture

Class 1 Appeals Concerning Refusal of a Development Application and Refusal to Issue a Building Information Certificate / Final Consent Orders After Hearing

Legal Issues

  1. 1 ['Whether the Court had power to make the proposed consent orders after assessing the applications under s 4.15 of the Environmental Planning and Assessment Act 1979.' "Whether the applicant's cl 4.6 written request adequately justified variation of the landscaped area development standard in cl 6.9(2) of the Hunters Hill Local Environmental Plan 2012." "Whether the applicant's cl 4.6 written request adequately justified variation of the floor space ratio development standard in cl 4.4(2) of the Hunters Hill Local Environmental Plan 2012." 'Whether deferred commencement development consent should be granted for the proposed new works and whether the Building Information Certificate appeal should be upheld subject to demolition works.']

Ratio Decidendi

The Court was satisfied that both cl 4.6 written requests adequately addressed why compliance with the landscaped area and floor space ratio standards was unreasonable or unnecessary and why sufficient environmental planning grounds justified the contraventions. The proposed development was consistent with the objectives of the standards and the R2 Low Density Residential zone, would improve the built form and landscaping, and would not create unacceptable visual, heritage or amenity impacts. The Court therefore had power to grant consent and considered the agreed orders lawful and appropriate on the merits.

Court Disposition

Both appeals were upheld. The cl 4.6 requests were upheld, deferred commencement development consent was granted for the proposed new works, and demolition works were ordered in connection with the Building Information Certificate appeal.

Orders

  • ['Leave is granted to the Applicant to amend its Class 1 Application (Appendix 1) to remove references to change of use of the subject premises and rely on new plans and information specified in Condition 2 in Part A General Conditions of the Schedule 1 conditions of Annexure C to these orders.' 'The applicant is to...