Lizard Apple Pty Ltd v Inner West Council [2019] NSWLEC 1146

Lizard Apple Pty Ltd v Inner West Council [2019] NSWLEC 1146

The Court adopted Maygood and held that the 2019 SEPP amendment was a relevant consideration but only one matter under s 4.15(1), not a determinative bar because the savings provision applied. On the merits, the proposal complied with applicable development standards, was visually compatible with the immediate Milton Street context and likely future character, and its overshadowing impacts were acceptable given existing conditions, the permissibility of a residential flat building on the site and amended plans. Giving cl 30AA determinative weight would be inappropriate, and there was insufficient evidence to impose the proposed positive covenant condition. The appeal was therefore upheld...

Jurisdiction
Australia
Judgment Date
05 April 2019
Procedural Posture
Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Principal Judgment After Hearing
Outcome
Appeal upheld; Development Application 10.2017.259.1 approved subject to conditions of consent at Annexure A.
Legal Topics
['boarding House Development in R2 Low Density Residential Zone' 'savings and Transitional Provisions for Amended Environmental Planning Instrument' 'character Compatibility Under Cl 30 a of State Environmental Planning Policy (affordable Rental Housing) 2009' 'overshadowing Impacts' 'positive Covenant Condition for Affordable Housing']
['planning and Environment' 'development Consent' 'affordable Rental Housing'] ['boarding House Development in R2 Low Density Residential Zone' 'savings and Transitional Provisions for Amended Environmental Planning Instrument' 'character Compatibility Under Cl 30 a of State Environmental Planning Policy (affordable Rental Housing) 2009' 'overshadowing Impacts' 'positive Covenant Condition for Affordable Housing']

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Procedural Posture

Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Principal Judgment After Hearing

Legal Issues

  1. 1 ['What regard and weight should be given to the 2019 amendment to State Environmental Planning Policy (Affordable Rental Housing) 2009 introducing cl 30AA where cl 54C savings provisions applied to the development application.' 'Whether the proposed three storey boarding house was compatible with the character of the local area under cl 30A of State Environmental Planning Policy (Affordable Rental Housing) 2009.' 'Whether overshadowing impacts on neighbouring properties warranted refusal.' 'Whether a condition requiring a positive covenant restricting occupants and rent levels should be imposed.']

Ratio Decidendi

The Court adopted Maygood and held that the 2019 SEPP amendment was a relevant consideration but only one matter under s 4.15(1), not a determinative bar because the savings provision applied. On the merits, the proposal complied with applicable development standards, was visually compatible with the immediate Milton Street context and likely future character, and its overshadowing impacts were acceptable given existing conditions, the permissibility of a residential flat building on the site and amended plans. Giving cl 30AA determinative weight would be inappropriate, and there was insufficient evidence to impose the proposed positive covenant condition. The appeal was therefore upheld...

Court Disposition

Appeal upheld; Development Application 10.2017.259.1 approved subject to conditions of consent at Annexure A.

Orders

  • ['Leave is granted to rely on the amended plans listed in Annexure A.' 'The appeal is upheld.' "Development Application 10.2017.259.1 for demolition of existing structures and construction of three storey boarding house comprising 36 boarding rooms, one communal room and one manager's room, and associated works...