Mitribe Holdings Pty Ltd v Canterbury-Bankstown Council [2021] NSWLEC 1381

Mitribe Holdings Pty Ltd v Canterbury-Bankstown Council [2021] NSWLEC 1381

The amended proposal warranted conditional approval because the expert evidence established that the amended design would not cause an unreasonable heritage impact and was compatible with the character of the local area; the applicant's cl 4.6 written request adequately demonstrated that compliance with the height standard was unreasonable or unnecessary and that sufficient environmental planning grounds justified the contravention; the development was consistent with the objectives of the height standard and the B2 Local Centre zone; and the public objections did not demonstrate that the proposal was not in the public interest. The amendments were not minor because they were central to...

Jurisdiction
Australia
Judgment Date
08 July 2021
Procedural Posture
Class 1 Appeal Against Deemed Refusal of Development Application No. 401/2020 / Principal Judgment; Final Orders
Outcome
Appeal upheld; development application approved subject to conditions; written request to justify height contravention upheld; respondent's thrown away costs ordered to be paid by the applicant.
Legal Topics
['development Application for Mixed Use Development and Boarding House' 'contravention of Height of Buildings Development Standard' 'clause 4.6 Written Request' 'heritage Conservation Area Impact' 'character Compatibility Under Affordable Rental Housing Planning Policy' 'public Interest Objections' 'costs Thrown Away After Amendment of Application']
['environmental Planning and Development' 'heritage Conservation' 'land Use Planning'] ['development Application for Mixed Use Development and Boarding House' 'contravention of Height of Buildings Development Standard' 'clause 4.6 Written Request' 'heritage Conservation Area Impact' 'character Compatibility Under Affordable Rental Housing Planning Policy' 'public Interest Objections' 'costs Thrown Away After Amendment of Application']

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Procedural Posture

Class 1 Appeal Against Deemed Refusal of Development Application No. 401/2020 / Principal Judgment; Final Orders

Legal Issues

  1. 1 ['Whether leave should be granted for the applicant to rely on amended plans.' 'Whether the proposed development would have an unacceptable heritage conservation impact or be incompatible with the character of the local area.' 'Whether the written request under cl 4.6 of Canterbury Local Environmental Plan 2012 adequately justified contravention of the height of buildings development standard in cl 4.3.' 'Whether the proposed development was in the public interest having regard to the objectives of the height standard, B2 Local Centre zone objectives, and public objections.' 'Whether the amendments to the application were minor for the purposes of s 8.15(3) of the Environmental Planning and Assessment Act 1979.']

Ratio Decidendi

The amended proposal warranted conditional approval because the expert evidence established that the amended design would not cause an unreasonable heritage impact and was compatible with the character of the local area; the applicant's cl 4.6 written request adequately demonstrated that compliance with the height standard was unreasonable or unnecessary and that sufficient environmental planning grounds justified the contravention; the development was consistent with the objectives of the height standard and the B2 Local Centre zone; and the public objections did not demonstrate that the proposal was not in the public interest. The amendments were not minor because they were central to...

Court Disposition

Appeal upheld; development application approved subject to conditions; written request to justify height contravention upheld; respondent's thrown away costs ordered to be paid by the applicant.

Orders

  • ['The applicant is granted leave to rely on the amended plans as referenced at Condition 2 of Annexure A.' 'In accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent that have been thrown away as a result of the amendment of the...