Boyce v Inner West Council [2019] NSWLEC 1521

Boyce v Inner West Council [2019] NSWLEC 1521

Although the Court had power under cl 29(4) of State Environmental Planning Policy (Affordable Rental Housing) 2009 to consent to the boarding house development despite exceedance of the applicable height and FSR standards without requiring the cl 4.6 regime, consent required a merit assessment. On the evidence, the proposed additional level was not justified by the alleged streetscape, transition, affordable housing or public transport benefits, was at odds with the LEP height and FSR objectives as expressions of desired future character, and the case had not been made to override the standards. Consent therefore could not be granted and the appeal was dismissed.

Jurisdiction
Australia
Judgment Date
30 October 2019
Procedural Posture
Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of a Development Application / Principal Judgment After Conciliation Under S 34(1) of the Land and Environment Court Act 1979 Was Terminated and the Appeal Was Heard Under S 34(4)(b)(i)
Outcome
Appeal dismissed; development application refused.
Legal Topics
['boarding House Development' 'height Development Standard' 'floor Space Ratio Development Standard' 'clause 4.6 Written Request' 'state Environmental Planning Policy (affordable Rental Housing) 2009 Cl 29(4)' 'local Character Compatibility' 'car Parking' 'public Interest']
['planning and Environment Law' 'development Consent'] ['boarding House Development' 'height Development Standard' 'floor Space Ratio Development Standard' 'clause 4.6 Written Request' 'state Environmental Planning Policy (affordable Rental Housing) 2009 Cl 29(4)' 'local Character Compatibility' 'car Parking' 'public Interest']

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Procedural Posture

Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of a Development Application / Principal Judgment After Conciliation Under S 34(1) of the Land and Environment Court Act 1979 Was Terminated and the Appeal Was Heard Under S 34(4)(b)(i)

Legal Issues

  1. 1 ['Whether cl 29(4) of State Environmental Planning Policy (Affordable Rental Housing) 2009 allowed consent to be granted for a boarding house exceeding LEP height and FSR standards without a cl 4.6 written request under Marrickville Local Environment Plan 2011' 'Whether the proposed additional level was acceptable on merit having regard to height, FSR, local character, desired future character, transition to adjoining development and amenity impacts' 'Whether the absence of additional parking warranted refusal' 'Whether approval would be in the public interest having regard to consistent application of planning controls and provision of affordable rental housing']

Ratio Decidendi

Although the Court had power under cl 29(4) of State Environmental Planning Policy (Affordable Rental Housing) 2009 to consent to the boarding house development despite exceedance of the applicable height and FSR standards without requiring the cl 4.6 regime, consent required a merit assessment. On the evidence, the proposed additional level was not justified by the alleged streetscape, transition, affordable housing or public transport benefits, was at odds with the LEP height and FSR objectives as expressions of desired future character, and the case had not been made to override the standards. Consent therefore could not be granted and the appeal was dismissed.

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed.' 'The development application No DA201800224 for the construction of an additional level to an approved six storey boarding house at 22 Fisher Street Petersham is refused.' 'The exhibits are returned with the exception of Exhibits A and B.']