KSPI Pty Ltd v Inner West Council [2024] NSWLEC 1375

KSPI Pty Ltd v Inner West Council [2024] NSWLEC 1375

The proposed development exceeds the applicable FSR by approximately 8%. The applicant's written request under cl 4.6 adequately demonstrated that compliance with the FSR control is unreasonable or unnecessary as the development achieves the objectives of the standard and of the zones. There are sufficient environmental planning grounds for the variation. All statutory requirements are met. Therefore, development consent can be granted notwithstanding the FSR non-compliance.

Jurisdiction
Australia
Judgment Date
04 July 2024
Procedural Posture
Appeal (development Application Refusal) / Final Determination After Conciliation Conference
Outcome
Appeal upheld; development consent granted subject to conditions.
Legal Topics
['development Application' 'development Standard Breach' 'floor Space Ratio' 'consent Authority Powers' 'heritage Conservation Area' 'lep Clause 4.6 Variation']
['planning and Environment Law'] ['development Application' 'development Standard Breach' 'floor Space Ratio' 'consent Authority Powers' 'heritage Conservation Area' 'lep Clause 4.6 Variation']

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Procedural Posture

Appeal (development Application Refusal) / Final Determination After Conciliation Conference

Legal Issues

  1. 1 ['Whether a contravention of the floor space ratio development standard under cl 4.4 of the IWLEP can be justified and consent granted under cl 4.6.' 'Whether the proposed development satisfies relevant statutory preconditions, including contamination, notification, zone objectives, and public interest.']

Ratio Decidendi

The proposed development exceeds the applicable FSR by approximately 8%. The applicant's written request under cl 4.6 adequately demonstrated that compliance with the FSR control is unreasonable or unnecessary as the development achieves the objectives of the standard and of the zones. There are sufficient environmental planning grounds for the variation. All statutory requirements are met. Therefore, development consent can be granted notwithstanding the FSR non-compliance.

Court Disposition

Appeal upheld; development consent granted subject to conditions.

Orders

  • ['The written request under cl 4.6 of the Inner West Local Environmental Plan 2021 for varying the floor space ratio standard is upheld.' 'The appeal is upheld.' 'Development application DA/2023/0158, as amended, is granted consent subject to conditions in Annexure A.']