Cracknell & Lonergan Architects v Marrickville Council [2014] NSWLEC 1000

Cracknell & Lonergan Architects v Marrickville Council [2014] NSWLEC 1000

A residential flat building was not permissible in the B2 Local Centre zone under Marrickville Local Environmental Plan 2011, so cl 29(1)(c) of State Environmental Planning Policy (Affordable Rental Housing) 2009 did not apply and the relevant deemed-to-comply floor space ratio was 1.5:1 under cl 29(1)(a). The proposal exceeded that standard, and its bulk and scale meant that its design was not compatible with the character of the local area, particularly the heritage conservation area, nearby low-scale dwellings and 17 Mary Street. Because cl 30A required consideration of compatibility with local character and the proposal did not warrant approval, the appeal was dismissed and consent...

Jurisdiction
Australia
Judgment Date
07 January 2014
Procedural Posture
Class 1 Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Principal Judgment After Hearing
Outcome
Appeal dismissed; development application refused.
Legal Topics
['boarding House Development Application' 'floor Space Ratio' 'affordable Rental Housing' 'compatibility With Local Area' 'bulk and Scale' 'heritage Conservation Area' 'overshadowing and Amenity Impacts']
['planning and Environment' 'development Consent' 'heritage Conservation'] ['boarding House Development Application' 'floor Space Ratio' 'affordable Rental Housing' 'compatibility With Local Area' 'bulk and Scale' 'heritage Conservation Area' 'overshadowing and Amenity Impacts']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the proposed development was of excessive bulk and scale.' 'Whether the proposed development had unacceptable negative effects on the heritage significance of the heritage conservation area and heritage items in the vicinity.' 'Whether the proposed development unacceptably overshadowed 17 Mary Street.' 'Whether the proposed development was incompatible with the character of the local area.' 'Whether the proposed development would result in unacceptable amenity impacts on 17 Mary Street and safety and amenity impacts on occupants of the boarding house.' 'Whether cl 29(1)(a) or cl 29(1)(c) of State Environmental Planning Policy (Affordable Rental Housing) 2009 supplied the relevant floor space ratio standard.' 'Whether a request under cl 4.6 of Marrickville Local Environmental Plan 2011 was required for exceedance of the floor space ratio standard.']

Ratio Decidendi

A residential flat building was not permissible in the B2 Local Centre zone under Marrickville Local Environmental Plan 2011, so cl 29(1)(c) of State Environmental Planning Policy (Affordable Rental Housing) 2009 did not apply and the relevant deemed-to-comply floor space ratio was 1.5:1 under cl 29(1)(a). The proposal exceeded that standard, and its bulk and scale meant that its design was not compatible with the character of the local area, particularly the heritage conservation area, nearby low-scale dwellings and 17 Mary Street. Because cl 30A required consideration of compatibility with local character and the proposal did not warrant approval, the appeal was dismissed and consent...

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed.' 'The development application for alterations and additions to an existing building for use as a boarding house with ground floor commercial at 19 Mary Street, Newtown, is refused.' 'The exhibits, except Exhibit 3, are returned.']