Gilfillan v Wagga Wagga City Council [2012] NSWLEC 1253

Gilfillan v Wagga Wagga City Council [2012] NSWLEC 1253

The proposed serviced apartment development provided temporary or short-term accommodation on a commercial basis and fell within both the LEP definitions of serviced apartment and hotel or motel accommodation. Because hotel or motel accommodation was expressly prohibited in the R1 General Residential zone, the proposal was prohibited notwithstanding that serviced apartments were not expressly listed as prohibited and might otherwise have been treated as an innominate permissible use. The proposal also failed because it was not housing for the purposes of the R1 zone objectives, did not provide facilities or services meeting the day to day needs of residents, and its built form and...

Jurisdiction
Australia
Judgment Date
10 September 2012
Procedural Posture
Class 1 Development Application Appeal / Appeal Against Refusal of Development Application Da11/0243
Outcome
Appeal dismissed; development application refused.
Legal Topics
['development Application' 'serviced Apartments' 'permissibility in R1 General Residential Zone' 'zone Objectives' 'streetscape and Neighbourhood Character' 'development Control Plan Assessment']
['planning and Environment Law'] ['development Application' 'serviced Apartments' 'permissibility in R1 General Residential Zone' 'zone Objectives' 'streetscape and Neighbourhood Character' 'development Control Plan Assessment']

Case Brief

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Procedural Posture

Class 1 Development Application Appeal / Appeal Against Refusal of Development Application Da11/0243

Legal Issues

  1. 1 ['Whether the proposed development was properly characterised as hotel or motel accommodation and therefore prohibited in the R1 General Residential zone under the Wagga Wagga Local Environmental Plan 2010.' 'Whether the proposed development was permissible as a serviced apartment use not specified as prohibited in the Land Use Table for the R1 zone.' 'Whether the proposed development was consistent with the objectives of the R1 General Residential zone.' 'Whether the proposed development was responsive to the site and compatible with the established residential character of the area.']

Ratio Decidendi

The proposed serviced apartment development provided temporary or short-term accommodation on a commercial basis and fell within both the LEP definitions of serviced apartment and hotel or motel accommodation. Because hotel or motel accommodation was expressly prohibited in the R1 General Residential zone, the proposal was prohibited notwithstanding that serviced apartments were not expressly listed as prohibited and might otherwise have been treated as an innominate permissible use. The proposal also failed because it was not housing for the purposes of the R1 zone objectives, did not provide facilities or services meeting the day to day needs of residents, and its built form and...

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed.' 'The development application (DA11/0243) for a serviced apartment development at 6-8 Darlow Street, Wagga Wagga, is refused.' 'The exhibits, except Exhibit 1, may be returned.']