Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90

Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90

The appeal failed because no legal error was established in the Commissioner’s construction or application of cl 4.6 of the Ashfield Local Environmental Plan 2013. The Commissioner’s conclusion that the written request did not demonstrate sufficient environmental planning grounds particular to the proposed development on the site was a factual or discretionary assessment not shown to involve legal error. Clause 4.6(4)(a)(i) and cl 4.6(4)(a)(ii) impose separate conjunctive requirements, so consistency with the objectives of the development standard and zone objectives under cl 4.6(4)(a)(ii) did not, without more, satisfy the requirement that the written request adequately address why...

Jurisdiction
Australia
Judgment Date
03 June 2015
Procedural Posture
Class 1 Appeal Under S 56 a of the Land and Environment Court Act 1979 (nsw) on Questions of Law / Appeal From a Commissioner’s Decision in Four2 Five Pty Ltd V Ashfield Council [2015] NSWLEC 1009
Outcome
Appeal dismissed; costs reserved.
Legal Topics
['development Standards' 'clause 4.6 Variation Request' 'height of Buildings' 'appeal on Questions of Law' 'local Environmental Plan Construction']
['environmental Planning and Development' 'statutory Construction' 'land and Environment Court Procedure'] ['development Standards' 'clause 4.6 Variation Request' 'height of Buildings' 'appeal on Questions of Law' 'local Environmental Plan Construction']

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Procedural Posture

Class 1 Appeal Under S 56 a of the Land and Environment Court Act 1979 (nsw) on Questions of Law / Appeal From a Commissioner’s Decision in Four2 Five Pty Ltd V Ashfield Council [2015] NSWLEC 1009

Legal Issues

  1. 1 ['Whether the Commissioner misconstrued cl 4.6(4)(a)(i) of the Ashfield Local Environmental Plan 2013 by requiring environmental planning grounds under cl 4.6(3)(b) to be particular to the circumstances of the proposed development on the subject site.' 'Whether the Commissioner misconstrued cl 4.6 by requiring the written request to demonstrate that compliance with the development standard was unreasonable or unnecessary separately from consistency with the objectives of the standard and the zone objectives under cl 4.6(4)(a)(ii).']

Ratio Decidendi

The appeal failed because no legal error was established in the Commissioner’s construction or application of cl 4.6 of the Ashfield Local Environmental Plan 2013. The Commissioner’s conclusion that the written request did not demonstrate sufficient environmental planning grounds particular to the proposed development on the site was a factual or discretionary assessment not shown to involve legal error. Clause 4.6(4)(a)(i) and cl 4.6(4)(a)(ii) impose separate conjunctive requirements, so consistency with the objectives of the development standard and zone objectives under cl 4.6(4)(a)(ii) did not, without more, satisfy the requirement that the written request adequately address why...

Court Disposition

Appeal dismissed; costs reserved.

Orders

  • ['The appeal is dismissed.' 'Costs are reserved.']