Glenn McCormack v Inner West Council [2017] NSWLEC 1559

Glenn McCormack v Inner West Council [2017] NSWLEC 1559

Consent should be granted because IDAP 2013 was entitled to weight, the applicant's cl4.6 requests adequately justified the height and FSR contraventions by reference to flood planning requirements, consistency with intended built form and lack of unacceptable bulk or amenity impacts, the Liverpool Road access concurrence should be granted, and the remaining transition concern could be resolved by amended plans providing a minimum 3m setback from the dwelling at 3 Lion Street.

Jurisdiction
Australia
Judgment Date
05 October 2017
Procedural Posture
Class 1 Development Appeal Under S97(1) of the Environmental Planning and Assessment Act 1979 From Deemed Refusal of Development Application No. 10.2016.060 / Hearing After Termination of S34 Conciliation Conference; Final Orders Made in Chambers by Addendum
Outcome
Appeal upheld; development consent granted to Development Application No. 10.2016.060 subject to conditions of consent.
Legal Topics
['development Application for Demolition and Mixed Use Buildings' 'clause 4.6 Exceptions to Development Standards' 'building Height Development Standard' 'floor Space Ratio Development Standard' 'flood Planning' 'weight to Interim Development Assessment Policy' 'zone Transition Between B4 Mixed Use and R2 Low Density Residential' 'vehicular Access to Classified Road and Roads Act Concurrence' 'sepp 65 and Apartment Design Guide']
['environmental Planning and Development' 'land and Environment' 'local Government Planning Controls'] ['development Application for Demolition and Mixed Use Buildings' 'clause 4.6 Exceptions to Development Standards' 'building Height Development Standard' 'floor Space Ratio Development Standard' 'flood Planning' 'weight to Interim Development Assessment Policy' 'zone Transition Between B4 Mixed Use and R2 Low Density Residential' 'vehicular Access to Classified Road and Roads Act Concurrence' 'sepp 65 and Apartment Design Guide']

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Procedural Posture

Class 1 Development Appeal Under S97(1) of the Environmental Planning and Assessment Act 1979 From Deemed Refusal of Development Application No. 10.2016.060 / Hearing After Termination of S34 Conciliation Conference; Final Orders Made in Chambers by Addendum

Legal Issues

  1. 1 ['What weight should be given to Ashfield Interim Development Assessment Policy 2013 in determining the appeal.' "Whether the applicant's cl4.6 requests to contravene ALEP 2013 height standards for Buildings A and B should be upheld." "Whether the applicant's cl4.6 request to contravene cl4.3(2A) by locating gross floor area within the roof space of Building B should be upheld." "Whether the applicant's cl4.6 request to contravene the floor space ratio standard for Building B should be upheld." 'Whether Building A provided an acceptable transition between the B4 zoning of the Subject Site and the R2 zoning of 3 Lion Street.' "Whether concurrence should be granted under s138 of the Roads Act 1993 for access via Liverpool Road using the Court's powers under s39 of the Land and Environment Court Act 1979."]

Ratio Decidendi

Consent should be granted because IDAP 2013 was entitled to weight, the applicant's cl4.6 requests adequately justified the height and FSR contraventions by reference to flood planning requirements, consistency with intended built form and lack of unacceptable bulk or amenity impacts, the Liverpool Road access concurrence should be granted, and the remaining transition concern could be resolved by amended plans providing a minimum 3m setback from the dwelling at 3 Lion Street.

Court Disposition

Appeal upheld; development consent granted to Development Application No. 10.2016.060 subject to conditions of consent.

Orders

  • ['The Applicant is granted leave to rely on amended plans.' 'The appeal is upheld.' "Development consent is granted to Development Application No. 10.2016.060, for the demolition of existing buildings and the construction of two multi-storey dwellings (referred to as Buildings A and B) in Croydon, subject to the...