Gladstone Terrace Development Pty Ltd v Burwood Council [2015] NSWLEC 1321

Gladstone Terrace Development Pty Ltd v Burwood Council [2015] NSWLEC 1321

The Revision G amended plans satisfactorily addressed the council's contentions and resident objections. The savings provision meant the development application was to be assessed by reference to the controls in force at lodgement, under which the relevant maximum height was 26m and maximum FSR was 3:1. The amended proposal's reduced height, FSR, design, heritage relationship, privacy, landscaping and acoustic outcomes were acceptable, and no remaining matter justified refusal.

Jurisdiction
Australia
Judgment Date
11 August 2015
Procedural Posture
Class 1 Appeal Against Refusal of Development Application No. 2014.161 / After S 34 Conciliation Conferences Were Terminated With No Agreement; Parties Consented to the Commissioner Disposing of the Proceeding Forthwith
Outcome
Appeal upheld; development application approved subject to conditions.
Legal Topics
['development Application' 'residential Flat Building' 'amended Plans' 'savings Provision' 'building Height' 'floor Space Ratio' 'urban Design' 'heritage Impacts' 'resident Objections' 'costs Thrown Away']
['planning and Environment Law'] ['development Application' 'residential Flat Building' 'amended Plans' 'savings Provision' 'building Height' 'floor Space Ratio' 'urban Design' 'heritage Impacts' 'resident Objections' 'costs Thrown Away']

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Procedural Posture

Class 1 Appeal Against Refusal of Development Application No. 2014.161 / After S 34 Conciliation Conferences Were Terminated With No Agreement; Parties Consented to the Commissioner Disposing of the Proceeding Forthwith

Legal Issues

  1. 1 ['Whether the applicant should be granted leave to rely on the Revision G amended plans.' 'Whether the amended residential development should be approved despite the refusal of Development Application No. 2014.161.' 'Whether the relevant planning controls were those in force before Burwood Local Environmental Plan 2012 – Amendment 5 commenced because of the savings provision.' 'Whether concerns about building height, floor space ratio, urban design, heritage impacts, amenity, overshadowing, noise and air pollution warranted refusal.']

Ratio Decidendi

The Revision G amended plans satisfactorily addressed the council's contentions and resident objections. The savings provision meant the development application was to be assessed by reference to the controls in force at lodgement, under which the relevant maximum height was 26m and maximum FSR was 3:1. The amended proposal's reduced height, FSR, design, heritage relationship, privacy, landscaping and acoustic outcomes were acceptable, and no remaining matter justified refusal.

Court Disposition

Appeal upheld; development application approved subject to conditions.

Orders

  • ['The applicant is granted leave to rely on the Revision G amended plans (Exhibit A).' "The applicant pay the respondent's costs thrown away pursuant to s 97B of the Environmental Planning and Assessment Act 1979 in the sum of $12,500 within 28 days." 'The appeal is upheld.' 'Development Application No. 2014.161 for...