Mars City Pty Ltd v Burwood Council [2020] NSWLEC 1585

Mars City Pty Ltd v Burwood Council [2020] NSWLEC 1585

The Court was satisfied that required owners consent had been provided, that the amended proposal complied with the applicable FSR and height controls, and that despite departures from some BDCP setback expectations the design appropriately addressed the unusual controls affecting the site, the Elizabeth Street context, privacy, amenity, building separation and pedestrian access. The proposal exhibited design excellence under cl 6.5 of the BLEP, was compatible with the local character for cl 30A of the Affordable Housing SEPP, and provided sufficient car parking on the merits by reference to the BDCP and the site's proximity to public transport. Leave to amend was granted because the...

Jurisdiction
Australia
Judgment Date
26 November 2020
Procedural Posture
Class 1 Appeal Concerning Development Application No. Da/2019/68 Against Deemed Refusal Under S 8.7 of the Environmental Planning and Assessment Act 1979 / Principal Judgment; Final Orders Granting Development Consent Subject to Conditions
Outcome
Appeal upheld; development consent granted subject to conditions; leave granted to amend the application subject to costs thrown away.
Legal Topics
['boarding House Development' 'state Environmental Planning Policy (affordable Rental Housing) 2009' 'character of the Local Area' 'design Excellence' 'owners Consent' 'floor Space Ratio' 'car Parking' 'amenity Impacts' 'development Control Plans']
['planning and Environment Law' 'development Consent' 'affordable Rental Housing'] ['boarding House Development' 'state Environmental Planning Policy (affordable Rental Housing) 2009' 'character of the Local Area' 'design Excellence' 'owners Consent' 'floor Space Ratio' 'car Parking' 'amenity Impacts' 'development Control Plans']

Case Brief

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Procedural Posture

Class 1 Appeal Concerning Development Application No. Da/2019/68 Against Deemed Refusal Under S 8.7 of the Environmental Planning and Assessment Act 1979 / Principal Judgment; Final Orders Granting Development Consent Subject to Conditions

Legal Issues

  1. 1 ['Whether the Applicant had owners consent required for the development application.' 'Whether the proposed development exhibited design excellence under cl 6.5 of the Burwood Local Environmental Plan 2012.' 'Whether the location of gross floor area on the site was incompatible with the character and streetscape of the local area.' 'Whether the proposed development would adversely impact the amenity of neighbouring properties, including by overshadowing, privacy impacts and building separation.' 'Whether the proposed car parking provision was inadequate.' 'Whether leave should be granted to amend the application and rely on amended plans at Exhibit H, and whether costs thrown away should be paid.']

Ratio Decidendi

The Court was satisfied that required owners consent had been provided, that the amended proposal complied with the applicable FSR and height controls, and that despite departures from some BDCP setback expectations the design appropriately addressed the unusual controls affecting the site, the Elizabeth Street context, privacy, amenity, building separation and pedestrian access. The proposal exhibited design excellence under cl 6.5 of the BLEP, was compatible with the local character for cl 30A of the Affordable Housing SEPP, and provided sufficient car parking on the merits by reference to the BDCP and the site's proximity to public transport. Leave to amend was granted because the...

Court Disposition

Appeal upheld; development consent granted subject to conditions; leave granted to amend the application subject to costs thrown away.

Orders

  • ["The Applicant is granted leave to amend the application and rely upon amended plans at Exhibit H subject to the Applicant paying the Respondent's costs thrown away as agreed or assessed, pursuant to s8.15(3) of the Environmental Planning and Assessment Act 1979." 'The appeal is upheld.' "Development consent is...