Jag 888 Pty Ltd & Anor. and Alsuzman Pty Ltd v Marrickville Council [2006] NSWLEC 265

Jag 888 Pty Ltd & Anor. and Alsuzman Pty Ltd v Marrickville Council [2006] NSWLEC 265

Attic rooms, as constructed and fitted out, constitute gross floor area; resulting in excess floor space ratio and height limit consequently breaching planning controls. Compliance is required; public interest does not justify exceptions. Orders to revert attic spaces to roof space are reasonable and valid.

Jurisdiction
Australia
Judgment Date
11 April 2006
Procedural Posture
Class 1 Appeal / Judgment
Outcome
Appeals dismissed
Legal Topics
['section 96 Application' 'orders to Return Building Into Compliance' 'floor Space Ratio Exceedance' 'disabled Persons Access' 'strata Plan Issues' 'height Exceedance' 'section 94 Contributions']
['planning and Environment'] ['section 96 Application' 'orders to Return Building Into Compliance' 'floor Space Ratio Exceedance' 'disabled Persons Access' 'strata Plan Issues' 'height Exceedance' 'section 94 Contributions']

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Procedural Posture

Class 1 Appeal / Judgment

Legal Issues

  1. 1 ['Whether attic areas constitute gross floor area resulting in exceedance of floor space ratio pursuant to clause 36(b) of Marrickville Local Environmental Plan 2001' 'Whether attic areas create additional demand for public amenities and change dwelling classification under Marrickville s 94 Contributions Plan 2004' 'Whether attic construction breached development consent and height limits under clause 36(c) of Local Environmental Plan' 'Whether attic areas are inconsistent with requirements for adaptable dwellings (AS4299-1995) and Marrickville Development and Control Plan No. 31' 'Whether these breaches are contrary to the public interest by breaching Environmental Planning and Assessment Act 1979']

Ratio Decidendi

Attic rooms, as constructed and fitted out, constitute gross floor area; resulting in excess floor space ratio and height limit consequently breaching planning controls. Compliance is required; public interest does not justify exceptions. Orders to revert attic spaces to roof space are reasonable and valid.

Court Disposition

Appeals dismissed

Orders

  • ['Appeals 11157/2005, 11512/2005 and 10231/2006 are dismissed.' 'Exhibits are returned to the parties except Exhibits 2, 3, 4, 5, 6, 7, 8 and Exhibits A, B, C and F.']