Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 1389

Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 1389

The proper calculation basis for the uppermost level floor area under clause 25I(7) of the Ku-ring-gai Planning Scheme Ordinance is gross floor area to gross floor area. The applicant's SEPP 1 objection to this standard was not well founded due to overshadowing impacts, making strict compliance necessary. However, the SEPP 1 objection to setback requirements was sustained as the imminent Town Centres LEP warranted flexibility. Development consent was granted subject to conditions including amendment to the uppermost level in accordance with expert agreement.

Jurisdiction
Australia
Judgment Date
25 November 2009
Procedural Posture
Development Application Appeal / Judgment
Outcome
Appeal upheld; development consent granted subject to conditions
Legal Topics
['development Standards' 'sepp 1 Objections' 'impact on Development Potential of Neighbouring Properties' 'section 94 Contributions']
['planning and Environment Law'] ['development Standards' 'sepp 1 Objections' 'impact on Development Potential of Neighbouring Properties' 'section 94 Contributions']

Case Brief

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Procedural Posture

Development Application Appeal / Judgment

Legal Issues

  1. 1 ['Whether permitting development would cause unacceptable impact on the development potential of neighbouring properties' 'Whether the SEPP 1 objection to compliance with setback provisions was well founded' 'Whether the uppermost level proposed complied with the provisions of clause 25I(7) of the Ku-ring-gai Planning Scheme Ordinance and if not, whether the SEPP 1 objection was well founded']

Ratio Decidendi

The proper calculation basis for the uppermost level floor area under clause 25I(7) of the Ku-ring-gai Planning Scheme Ordinance is gross floor area to gross floor area. The applicant's SEPP 1 objection to this standard was not well founded due to overshadowing impacts, making strict compliance necessary. However, the SEPP 1 objection to setback requirements was sustained as the imminent Town Centres LEP warranted flexibility. Development consent was granted subject to conditions including amendment to the uppermost level in accordance with expert agreement.

Court Disposition

Appeal upheld; development consent granted subject to conditions

Orders

  • ['The appeal is upheld.' 'Objection pursuant to SEPP 1 to compliance with the development standard for setbacks in cl 25L(2) of the Ku-ring-gai Planning Scheme Ordinance is sustained.' 'Objection pursuant to SEPP 1 to compliance with the development standard for top storey floor area in cl 25I(7) of the Ku-ring-gai...