Maham Group Pty Ltd v Blacktown City Council [2019] NSWLEC 1168

Maham Group Pty Ltd v Blacktown City Council [2019] NSWLEC 1168

Clause 29(4) ARH SEPP creates a direct inconsistency with LEP height controls, so SEPP prevails, and a clause 4.6 written request is not required. The development is compatible with the existing and emerging character of the local area, will not unreasonably isolate the church property, meets design excellence requirements, and engineering and management issues can be resolved via conditions. The appeal should be upheld and development application approved, subject to conditions.

Parties
Applicant: Maham Group Pty Ltd; Respondent: Blacktown City Council
Jurisdiction
Australia
Judgment Date
16 April 2019
Procedural Posture
Appeal Development Application / Final Judgment
Outcome
Appeal upheld; development application approved subject to conditions; costs order
Legal Topics
Development Application, Boarding House, LEP Height Control, Clause 4.6 Variation, Site Isolation, Local Character Assessment, Design Excellence, Plan of Management Requirements, Waste Management, Basement Ramp Gradient, Disputed Conditions
Planning and Environment Law Development Application Boarding House LEP Height Control Clause 4.6 Variation Site Isolation Local Character Assessment Design Excellence +4 more

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Parties

Maham Group Pty Ltd

Applicant

Blacktown City Council

Respondent

Procedural Posture

Appeal Development Application / Final Judgment

Legal Issues

  1. 1 Whether clause 4.6 written request is required to approve breach of LEP height control for boarding house development
  2. 2 Compatibility of proposed development with local character
  3. 3 Site isolation of adjoining church property

Ratio Decidendi

Clause 29(4) ARH SEPP creates a direct inconsistency with LEP height controls, so SEPP prevails, and a clause 4.6 written request is not required. The development is compatible with the existing and emerging character of the local area, will not unreasonably isolate the church property, meets design excellence requirements, and engineering and management issues can be resolved via conditions. The appeal should be upheld and development application approved, subject to conditions.

Court Disposition

Appeal upheld; development application approved subject to conditions; costs order

Orders

  • The applicant is given leave to amend the development application and rely upon the plans listed at condition 2.1.1 in Annexure "A".
  • The applicant is to pay those costs of the Respondent thrown away as a result of amending the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.