McFarlane v Inner West Council [2024] NSWLEC 1484

McFarlane v Inner West Council [2024] NSWLEC 1484

The appeal was upheld because the Court was satisfied that the cl 4.6 written request adequately justified the minor contravention of cl 6.20(3)(a)(i), that the proposal would maintain a single storey appearance and would not adversely impact the heritage significance of the Haberfield Heritage Conservation Area, and that flexibility should be applied to the relevant DCP controls because the amended proposal achieved their objectives. No respondent contention was established as a ground for refusal and there were no jurisdictional impediments to granting consent subject to conditions.

Jurisdiction
Australia
Judgment Date
13 August 2024
Procedural Posture
Class 1 Appeal Pursuant to S 8.9 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application Da/2023/0112 / After Mandatory Conciliation Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated, Hearing Held Forthwith; Final Determination of Appeal
Outcome
Appeal upheld; development application approved subject to conditions of consent in Annexure A.
Legal Topics
['development Application for Alterations and Additions to Dwelling House' 'haberfield Heritage Conservation Area' 'clause 4.6 Variation to Development Standard' 'development Control Plan Flexibility' 'heritage Impact Assessment']
['planning and Environment Law' 'heritage Conservation' 'development Consent'] ['development Application for Alterations and Additions to Dwelling House' 'haberfield Heritage Conservation Area' 'clause 4.6 Variation to Development Standard' 'development Control Plan Flexibility' 'heritage Impact Assessment']

Case Brief

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Procedural Posture

Class 1 Appeal Pursuant to S 8.9 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application Da/2023/0112 / After Mandatory Conciliation Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated, Hearing Held Forthwith; Final Determination of Appeal

Legal Issues

  1. 1 ['Whether the proposed roof form, clerestory glazing and garage design would have an unacceptable adverse impact on the Haberfield Heritage Conservation Area.' "Whether the applicant's written request justified contravention of cl 6.20(3)(a)(i) of the Inner West Local Environmental Plan 2022 under cl 4.6." 'Whether the Court should flexibly apply the relevant controls in Chapter E2 of the Inner West Development Control Plan 2016.' 'Whether, on consideration under s 4.15 of the Environmental Planning and Assessment Act 1979, the development application should be refused or approved.']

Ratio Decidendi

The appeal was upheld because the Court was satisfied that the cl 4.6 written request adequately justified the minor contravention of cl 6.20(3)(a)(i), that the proposal would maintain a single storey appearance and would not adversely impact the heritage significance of the Haberfield Heritage Conservation Area, and that flexibility should be applied to the relevant DCP controls because the amended proposal achieved their objectives. No respondent contention was established as a ground for refusal and there were no jurisdictional impediments to granting consent subject to conditions.

Court Disposition

Appeal upheld; development application approved subject to conditions of consent in Annexure A.

Orders

  • ['Appeal is upheld.' 'Development application DA/2023/0112 for alterations and additions to a dwelling house including partial demolition, rear extension with upper level, reinstatement works, garage and pool at 15 Tressider Avenue, Haberfield is approved, subject to the conditions of consent in Annexure A.' 'The...