Al Ali v Canterbury-Bankstown Council [2019] NSWLEC 1115

Al Ali v Canterbury-Bankstown Council [2019] NSWLEC 1115

The Court upheld the appeal because the proposed draft boarding house controls were not sufficiently certain or imminent to be given determinative weight, the proposal was compatible with the existing and likely future character of the mixed high density residential locality, neighbour amenity impacts were acceptable, the 12-space basement parking layout was satisfactory despite a small accessway width non-compliance, and landscaping and solar access did not provide grounds for refusal under SEPP ARH. The disputed noise condition was unreasonable, but the amended application was not minor, requiring the Applicant to pay the Council's costs thrown away.

Jurisdiction
Australia
Judgment Date
26 March 2019
Procedural Posture
Class 1 Appeal Against Refusal of Development Application No Da394/2017 for a Boarding House / Principal Judgment; Final Orders
Outcome
Appeal upheld; development application approved subject to conditions; leave granted to rely on amended plans; Applicant ordered to pay Respondent's costs thrown away as agreed or assessed.
Legal Topics
['boarding House Development' 'weight to Proposed Environmental Planning Instrument' 'character Compatibility' 'amenity Impacts' 'parking' 'landscaping' 'solar Access' 'noise Nuisance Condition' 'costs Thrown Away for Amended Plans']
['planning and Environment' 'development Consent' 'affordable Rental Housing'] ['boarding House Development' 'weight to Proposed Environmental Planning Instrument' 'character Compatibility' 'amenity Impacts' 'parking' 'landscaping' 'solar Access' 'noise Nuisance Condition' 'costs Thrown Away for Amended Plans']

Case Brief

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Procedural Posture

Class 1 Appeal Against Refusal of Development Application No Da394/2017 for a Boarding House / Principal Judgment; Final Orders

Legal Issues

  1. 1 ['Whether determinative weight should be given to an exhibited draft Boarding House LEP introducing minimum site width and site area controls for boarding houses.' 'Whether the proposed boarding house was compatible with the character of the local area and acceptable in relation to neighbour amenity impacts.' 'Whether the proposed basement parking arrangement satisfied or was acceptable having regard to State Environmental Planning Policy (Affordable Rental Housing) 2009 and AS/NZS 2890.1:2004.' 'Whether the front setback landscaping and solar access to the communal living room provided grounds for refusal.' "Whether Council's proposed noise nuisance condition was reasonable." 'Whether amendments to the application were minor so as to avoid a costs order for costs thrown away.']

Ratio Decidendi

The Court upheld the appeal because the proposed draft boarding house controls were not sufficiently certain or imminent to be given determinative weight, the proposal was compatible with the existing and likely future character of the mixed high density residential locality, neighbour amenity impacts were acceptable, the 12-space basement parking layout was satisfactory despite a small accessway width non-compliance, and landscaping and solar access did not provide grounds for refusal under SEPP ARH. The disputed noise condition was unreasonable, but the amended application was not minor, requiring the Applicant to pay the Council's costs thrown away.

Court Disposition

Appeal upheld; development application approved subject to conditions; leave granted to rely on amended plans; Applicant ordered to pay Respondent's costs thrown away as agreed or assessed.

Orders

  • ['Leave is granted to rely on amended plans listed in Annexure A.' "The Applicant is to pay the Respondent's costs in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed." 'The appeal is upheld.' "Development Application No DA394/2017 for demolition of...