Capolupo v Inner West Council [2021] NSWLEC 1077

The Court upheld the appeal and granted development consent because the amended proposal was permissible with consent in the R2 – Low Density Residential zone, the agreed conditions resolved the Council's built form, heritage, skylight, garage roof, landscaped area and information contentions, the cl 4.6 written request adequately justified variation of the 50% landscaped area standard, the amended proposal was consistent with the relevant objectives and in the public interest, SEPP 55, SEPP BASIX and SEPP Vegetation had been satisfactorily addressed, and no jurisdictional matters prevented the grant of consent.

Jurisdiction: Australia
Judgment Date: 18 February 2021
Procedural Posture: Class 1 Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of Development Application Da/2020/0438 / Conciliation Conference Under S 34 Aa(2) of the Land and Environment Court Act 1979 Was Terminated and a Hearing Held Forthwith; Orders Made by Consent
Outcome: Appeal upheld; development consent granted subject to conditions.
Legal Topics: ['development Application for Alterations and Additions to Dwelling' 'haberfield Heritage Conservation Area' 'clause 4.6 Variation to Landscaped Area Development Standard' 'sepp 55 Remediation Consideration' 'basix Requirements' 'vegetation in Non Rural Areas' 'orders by Consent After Conciliation Conference']

['environmental Planning and Development' 'heritage Conservation' 'land and Environment Court Procedure'] ['development Application for Alterations and Additions to Dwelling' 'haberfield Heritage Conservation Area' 'clause 4.6 Variation to Landscaped Area Development Standard' 'sepp 55 Remediation Consideration' 'basix Requirements' 'vegetation in Non Rural Areas' 'orders by Consent After Conciliation Conference']

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Procedural Posture

Class 1 Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of Development Application Da/2020/0438 / Conciliation Conference Under S 34 Aa(2) of the Land and Environment Court Act 1979 Was Terminated and a Hearing Held Forthwith; Orders Made by Consent

Legal Issues

1 ['Whether development consent should be granted for alterations and additions to an existing dwelling at 32 Empire Street, Haberfield.' 'Whether amended conditions satisfactorily resolved built form and heritage impacts concerning the proposed roof form, scale and relationship to the existing dwelling and Haberfield Heritage Conservation Area.' 'Whether the number and placement of skylights in the proposed roof form additions were acceptable.' 'Whether gablet roof elements on the proposed garage were consistent with cl 6.5(3)(c) of the Ashfield Local Environmental Plan 2013.' 'Whether the proposed non-compliance with the minimum 50% landscaped area requirement in cl 6.5(3)(d) of the Ashfield Local Environmental Plan 2013 should be upheld under cl 4.6.' 'Whether sufficient information had been provided about the proposed lift, materials and colours.' 'Whether there were jurisdictional matters preventing the grant of development consent.']

Ratio Decidendi

Court Disposition

Appeal upheld; development consent granted subject to conditions.

Orders

['The appeal is upheld.' "Development Application No. DA/2020/0438 for alterations and additions to the existing dwelling upon the land be granted consent subject to the conditions of consent set out in Annexure 'A'." 'The exhibits are returned, other than exhibits 1, 4, A and B.']