Morad v Inner West Council [2019] NSWLEC 1005

Morad v Inner West Council [2019] NSWLEC 1005

The appeal was dismissed because the applicant failed to satisfy the Court that the cl 4.6 written request adequately justified contravention of the floor space ratio standard, and because the evidence showed that the heritage item could be retained and protected through on-site drainage strategies and other modifications. The Court was not satisfied that overland flow necessitated demolition of the Clifton Street portion of the heritage item, and found the proposed partial demolition contrary to the heritage conservation objectives in cl 5.10(1)(a) and (b) of the Leichhardt Local Environment Plan 2013.

Jurisdiction
Australia
Judgment Date
31 January 2019
Procedural Posture
Class 1 Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Final Determination
Outcome
Appeal dismissed; development application refused.
Legal Topics
['development Application for Alterations and Additions' 'demolition of Heritage Item' 'heritage Conservation Area' 'stormwater and Overland Flow' 'floor Space Ratio Variation Under Cl 4.6' 'contamination and Remediation' 'tree Removal' 'foreshore Development']
['planning and Environment' 'heritage' 'development Consent'] ['development Application for Alterations and Additions' 'demolition of Heritage Item' 'heritage Conservation Area' 'stormwater and Overland Flow' 'floor Space Ratio Variation Under Cl 4.6' 'contamination and Remediation' 'tree Removal' 'foreshore Development']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 1 Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Final Determination

Legal Issues

  1. 1 ['Whether the proposed demolition and rebuilding of the Clifton Street portion of the heritage item should be approved to address stormwater overland flow and access issues.' "Whether the applicant's written request under cl 4.6 adequately justified contravention of the floor space ratio development standard in cl 4.4 of the Leichhardt Local Environment Plan 2013." 'Whether the proposed development was consistent with heritage conservation objectives in cl 5.10 of the Leichhardt Local Environment Plan 2013.' 'Whether potential contamination in the Lease Lot area and swimming pool location prevented consent under State Environmental Planning Policy No.55 – Remediation of Land.' 'Whether the Court should approve the balance of the application by an amber light approach despite concerns about demolition of the Clifton Street frontage.']

Ratio Decidendi

The appeal was dismissed because the applicant failed to satisfy the Court that the cl 4.6 written request adequately justified contravention of the floor space ratio standard, and because the evidence showed that the heritage item could be retained and protected through on-site drainage strategies and other modifications. The Court was not satisfied that overland flow necessitated demolition of the Clifton Street portion of the heritage item, and found the proposed partial demolition contrary to the heritage conservation objectives in cl 5.10(1)(a) and (b) of the Leichhardt Local Environment Plan 2013.

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed.' 'Development Application No. DA 2017/557 for alterations and additions to the existing dwelling and boathouse at 14 Clifton Street, Balmain East is refused.' 'The exhibits, other than Exhibits A, B, K, 1 and 7 are returned.']