Costello v Bathurst Regional Council [2017] NSWLEC 1195

Costello v Bathurst Regional Council [2017] NSWLEC 1195

The Court was not satisfied that the clause 4.6 written request justified contravention of the clause 4.1B minimum lot size development standard. Site coverage alone did not demonstrate achievement of planned residential density, the amended design did not demonstrate minimisation of adverse amenity impacts, and the stated environmental planning grounds were not particular to the proposed development or site circumstances. Because the proposal was not consistent with the objectives of the minimum lot size standard and the plans were otherwise not capable of consent in their present form, development consent was refused and the appeal was dismissed.

Jurisdiction
Australia
Judgment Date
20 April 2017
Procedural Posture
Class 1 Appeal Against Refusal of Development Application for Residential Dual Occupancy Development and 2 Lot Subdivision / Hearing Following Termination of S34 AA Conciliation Conference; Appeal Dismissed
Outcome
Appeal dismissed; development consent refused.
Legal Topics
['dual Occupancy Development' 'minimum Lot Size Development Standard' 'clause 4.6 Variation Request' 'local Environmental Plan Compliance' 'development Control Plan Compliance' 'residential Amenity']
['planning and Environment Law' 'development Consent' 'land Use Planning'] ['dual Occupancy Development' 'minimum Lot Size Development Standard' 'clause 4.6 Variation Request' 'local Environmental Plan Compliance' 'development Control Plan Compliance' 'residential Amenity']

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Procedural Posture

Class 1 Appeal Against Refusal of Development Application for Residential Dual Occupancy Development and 2 Lot Subdivision / Hearing Following Termination of S34 AA Conciliation Conference; Appeal Dismissed

Legal Issues

  1. 1 ['Whether the written request under clause 4.6 of Bathurst Regional Local Environmental Plan 2014 justified contravention of the minimum lot size development standard in clause 4.1B.' 'Whether compliance with the minimum lot size development standard was unreasonable or unnecessary in the circumstances of the case.' 'Whether there were sufficient environmental planning grounds to justify contravening the development standard.' 'Whether the proposed development was in the public interest because it was consistent with the objectives of the development standard and the R1 General Residential zone.' 'Whether the amended plans were capable of consent and represented an appropriate design solution.']

Ratio Decidendi

The Court was not satisfied that the clause 4.6 written request justified contravention of the clause 4.1B minimum lot size development standard. Site coverage alone did not demonstrate achievement of planned residential density, the amended design did not demonstrate minimisation of adverse amenity impacts, and the stated environmental planning grounds were not particular to the proposed development or site circumstances. Because the proposal was not consistent with the objectives of the minimum lot size standard and the plans were otherwise not capable of consent in their present form, development consent was refused and the appeal was dismissed.

Court Disposition

Appeal dismissed; development consent refused.

Orders

  • ["The applicant is granted leave to rely on amended plans, Exhibit B, subject to payment of the respondent's costs thrown away pursuant to s97B of the Environmental Planning and Assessment Act 1979." 'The written request to vary the development standard contained in clause 4.1B of Bathurst Local Environmental Plan...