Hicks Avenue Developments Pty Ltd v Botany Bay City Council [2016] NSWLEC 1318

Hicks Avenue Developments Pty Ltd v Botany Bay City Council [2016] NSWLEC 1318

The Court was not satisfied that the proposed development was in the public interest under cl 4.6(4)(a)(ii) because it was not consistent with the objectives of the FSR standard, particularly compatibility with the bulk and scale of the existing and desired future character and maintenance of an appropriate visual relationship with the existing character and streetscape. The Court was also not satisfied under cl 4.6(4)(a)(i) that the written request adequately addressed the requirements of cl 4.6(3). Because cl 4.6 was a precondition to granting consent for the non-compliant development, there was no power to grant consent and the application failed.

Jurisdiction
Australia
Judgment Date
05 August 2016
Procedural Posture
Class 1 Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of a Development Application / Principal Judgment After Conciliation Conference and Hearing
Outcome
Appeal dismissed and development application refused.
Legal Topics
['development Application for Semi Detached Dwellings' 'floor Space Ratio Development Standard' 'clause 4.6 Variation Request' 'existing and Desired Future Character' 'bulk and Scale' 'low Density Residential Zoning']
['planning and Environment Law' 'development Consent'] ['development Application for Semi Detached Dwellings' 'floor Space Ratio Development Standard' 'clause 4.6 Variation Request' 'existing and Desired Future Character' 'bulk and Scale' 'low Density Residential Zoning']

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Procedural Posture

Class 1 Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of a Development Application / Principal Judgment After Conciliation Conference and Hearing

Legal Issues

  1. 1 ['Whether the proposed development was consistent with the objectives of the floor space ratio standard in cl 4.4 of Botany Bay Local Environmental Plan 2013.' "Whether the applicant's written request under cl 4.6 adequately demonstrated that compliance with the floor space ratio standard was unreasonable or unnecessary and that there were sufficient environmental planning grounds to justify contravention." 'Whether the bulk and scale of the proposal was compatible with the existing and desired future character of the locality.']

Ratio Decidendi

The Court was not satisfied that the proposed development was in the public interest under cl 4.6(4)(a)(ii) because it was not consistent with the objectives of the FSR standard, particularly compatibility with the bulk and scale of the existing and desired future character and maintenance of an appropriate visual relationship with the existing character and streetscape. The Court was also not satisfied under cl 4.6(4)(a)(i) that the written request adequately addressed the requirements of cl 4.6(3). Because cl 4.6 was a precondition to granting consent for the non-compliant development, there was no power to grant consent and the application failed.

Court Disposition

Appeal dismissed and development application refused.

Orders

  • ['The appeal is dismissed.' 'The development application (15/250) for demolition of existing structures, construction of two x two storey semi-detached dwellings, landscaping and boundary adjustment at 18 Hicks Avenue, Mascot, is refused.' 'The exhibits, except Exhibit 3, are returned.']