IPM Holdings Pty Limited v The Council of the City of Sydney [2020] NSWLEC 1593

IPM Holdings Pty Limited v The Council of the City of Sydney [2020] NSWLEC 1593

Although the application for residential use of the five units was capable of being a development application and no cl 4.6 written request was required, consent should be refused. The proposed planning agreement could not lawfully be imposed because it was not voluntary, was not for a public purpose within s 7.4 of...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
27 November 2020
Procedural Posture
Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 From the Deemed Refusal of Development Application D/2019/952 / Principal Judgment After Hearing
Outcome
Appeal dismissed
Legal Topics
['development Application for Occupation and Use of Residential Apartments' 'voluntary Planning Agreement' 'orderly and Economic Use and Development of Land' 'public Interest' 'floor Space Ratio and Restrictive Covenants' 'occupation Certificates' 'heritage Conservation Works']
['planning and Environment Law' 'development Consent' 'heritage Conservation'] ['development Application for Occupation and Use of Residential Apartments' 'voluntary Planning Agreement' 'orderly and Economic Use and Development of Land' 'public Interest' 'floor Space Ratio and Restrictive Covenants' 'occupation Certificates' 'heritage Conservation Works']

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Procedural Posture

Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 From the Deemed Refusal of Development Application D/2019/952 / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the proposed occupation and use of Units 305 to 309 was capable of being the subject of a development application under the Environmental Planning and Assessment Act 1979.' 'Whether a cl 4.6 written request was required to vary the floor space ratio development standard in cl 4.4 of the Sydney Local Environmental Plan 2012.' 'Whether the proposed planning agreement could lawfully be imposed as a condition of consent and relied upon to support approval.' 'Whether granting consent without satisfaction of outstanding conditions of DA/1890 would promote the orderly and economic use and development of land and be in the public interest.']

Ratio Decidendi

Although the application for residential use of the five units was capable of being a development application and no cl 4.6 written request was required, consent should be refused. The proposed planning agreement could not lawfully be imposed because it was not voluntary, was not for a public purpose within s 7.4 of the EPA Act, and did not provide a satisfactory mechanism to secure access to and completion of the Telford Lodge works. Granting consent without the outstanding conditions of DA/1890 would remove the security and incentive for completion of heritage conservation works and registration of covenants preventing double dipping, transfer risk to adjoining landowners and the strata...

Court Disposition

Appeal dismissed

Orders

  • ['The appeal is dismissed.' 'The exhibits are returned except for R2.1 and R4.2.']