Milosevic v Inner West Council [2016] NSWLEC 1360

Milosevic v Inner West Council [2016] NSWLEC 1360

The amended proposal was acceptable because the single garage complied with each aspect of control C48 of Leichhardt Development Control Plan 2013, was sufficiently deferential to the street elevation, and the amended design aligned sufficiently with horizontal elements of neighbouring properties to be a decorous and satisfactory addition to the Balmain heritage conservation area. The cl 4.6 request justified flexibility in applying the floor space ratio development standard because the amended envelope was consistent with the relevant objectives concerning desired future character, landscaped areas and built form, and minimising bulk and scale impacts.

Jurisdiction
Australia
Judgment Date
15 August 2016
Procedural Posture
Class 1 Appeal Pursuant to S 97 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. D/2015/662 / Hearing Held Forthwith After Mandatory Conciliation Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated; Principal Judgment and Orders
Outcome
Appeal upheld and development application approved subject to conditions of consent.
Legal Topics
['development Application for New Infill Dwelling' 'heritage Conservation Area Impact' 'on Site Parking and Garage Access From Primary Street Frontage' 'floor Space Ratio Development Standard Variation']
['environmental Planning and Development' 'heritage Conservation' 'land and Environment Court Procedure'] ['development Application for New Infill Dwelling' 'heritage Conservation Area Impact' 'on Site Parking and Garage Access From Primary Street Frontage' 'floor Space Ratio Development Standard Variation']

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Procedural Posture

Class 1 Appeal Pursuant to S 97 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. D/2015/662 / Hearing Held Forthwith After Mandatory Conciliation Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated; Principal Judgment and Orders

Legal Issues

  1. 1 ['Whether the proposed single garage should be deleted because of adverse impact on the heritage significance of the Balmain heritage conservation area.' 'Whether the amended proposal, including the street elevation and envelope, was acceptable for development consent.' 'Whether flexibility should be applied to the floor space ratio development standard under cl 4.6 of Leichhardt Local Environment Plan 2013.']

Ratio Decidendi

The amended proposal was acceptable because the single garage complied with each aspect of control C48 of Leichhardt Development Control Plan 2013, was sufficiently deferential to the street elevation, and the amended design aligned sufficiently with horizontal elements of neighbouring properties to be a decorous and satisfactory addition to the Balmain heritage conservation area. The cl 4.6 request justified flexibility in applying the floor space ratio development standard because the amended envelope was consistent with the relevant objectives concerning desired future character, landscaped areas and built form, and minimising bulk and scale impacts.

Court Disposition

Appeal upheld and development application approved subject to conditions of consent.

Orders

  • ['The appeal is upheld.' "Development Application No. D/2015/662 for a new two and three storey dwelling at 5 Stephen Street, Balmain is approved, subject to the conditions of consent at Annexure 'A'." 'The exhibits, other than exhibit 1, are returned.']