Mod Urban Pty Ltd v Inner West Council [2022] NSWLEC 1226

Mod Urban Pty Ltd v Inner West Council [2022] NSWLEC 1226

The Court was satisfied that the parties' agreement was a decision the Court could have made in the proper exercise of its functions. The amended proposal would not affect the heritage significance of the local heritage item because the new garage was a sympathetic addition to the curtilage of the heritage villa. The applicant's cl 4.6 written request adequately addressed the required matters, including sufficient environmental planning grounds for the floor space ratio exceedance, and the proposal was in the public interest because it was consistent with the objectives of the floor space ratio development standard and the R2 Low Density Residential zone. Accordingly, the appeal was...

Jurisdiction
Australia
Judgment Date
03 May 2022
Procedural Posture
Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Orders Following Agreement Reached at a Conciliation Conference Under S 34 of the Land and Environment Court Act 1979
Outcome
Appeal upheld; development application determined by grant of consent subject to conditions; applicant to pay respondent's thrown away costs resulting from amendment of the development application.
Legal Topics
['development Application for Alterations and Additions to Existing Dwelling' 'local Heritage Item' 'clause 4.6 Variation to Floor Space Ratio Development Standard' 'section 34 Conciliation Conference' 'amendment of Development Application' 'thrown Away Costs']
['planning and Environment' 'development Consent' 'heritage' 'costs'] ['development Application for Alterations and Additions to Existing Dwelling' 'local Heritage Item' 'clause 4.6 Variation to Floor Space Ratio Development Standard' 'section 34 Conciliation Conference' 'amendment of Development Application' 'thrown Away Costs']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Orders Following Agreement Reached at a Conciliation Conference Under S 34 of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the parties' agreement was a decision the Court could have made in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979." 'Whether the amended development application could be granted consent under s 4.16 of the Environmental Planning and Assessment Act 1979.' 'Whether the proposal satisfied the heritage precondition in cl 5.10(4) of the Marrickville Local Environmental Plan 2011.' "Whether the applicant's written request adequately justified contravention of the floor space ratio development standard under cl 4.6 of the Marrickville Local Environmental Plan 2011." 'Whether the proposed development was in the public interest because it was consistent with the objectives of the floor space ratio standard and the R2 Low Density Residential zone.']

Ratio Decidendi

The Court was satisfied that the parties' agreement was a decision the Court could have made in the proper exercise of its functions. The amended proposal would not affect the heritage significance of the local heritage item because the new garage was a sympathetic addition to the curtilage of the heritage villa. The applicant's cl 4.6 written request adequately addressed the required matters, including sufficient environmental planning grounds for the floor space ratio exceedance, and the proposal was in the public interest because it was consistent with the objectives of the floor space ratio development standard and the R2 Low Density Residential zone. Accordingly, the appeal was...

Court Disposition

Appeal upheld; development application determined by grant of consent subject to conditions; applicant to pay respondent's thrown away costs resulting from amendment of the development application.

Orders

  • ['The appeal is upheld.' 'Development Application No. DA2021/0482, as amended, to demolish the existing garage and part of the wall to Fitzroy Lane, and to construct a double garage with a room over, at 69 Albermarle Street, Newtown, is determined by the grant of consent, subject to the conditions at Annexure A.'...