Abdullah v Strathfield Municipal Council [2020] NSWLEC 1467

Abdullah v Strathfield Municipal Council [2020] NSWLEC 1467

The proposed reinstatement of bedroom 4 was unacceptable because it protruded too far towards the rear and, from the lower adjoining property at 10 Elwin Street, was perceived as too high and bulky. It failed to respect the predominant form, scale and character of nearby dwellings, diminished openness between built elements, did not protect adjoining amenity, and did not respond to the topographical difference between the site and its eastern neighbour. For those reasons it was inconsistent with the identified objectives and controls of Strathfield Consolidated Development Control Plan 2005, so the modification application was refused.

Jurisdiction
Australia
Judgment Date
06 October 2020
Procedural Posture
Class 1 Appeal Pursuant to S 8.9(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of an Application Under S 4.55 to Modify Development Consent DA 2018/176 / Hearing Commenced After Conciliation Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated
Outcome
Appeal dismissed and application to modify development consent DA 2018/176 refused.
Legal Topics
['modification Application' 'bulk and Scale' 'residential Character' 'development Control Plan Objectives' 'floor Space Ratio' 'amenity of Adjoining Properties']
['planning and Environmental Law' 'development Consent Modification'] ['modification Application' 'bulk and Scale' 'residential Character' 'development Control Plan Objectives' 'floor Space Ratio' 'amenity of Adjoining Properties']

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Procedural Posture

Class 1 Appeal Pursuant to S 8.9(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of an Application Under S 4.55 to Modify Development Consent DA 2018/176 / Hearing Commenced After Conciliation Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated

Legal Issues

  1. 1 ['Whether the proposed reinstatement of bedroom 4 was an unacceptable addition having regard to the reason for the original consent condition, the objectives of the FSR control in cl 4.4 of Strathfield Local Environmental Plan 2012, the objectives and controls in Strathfield Consolidated Development Control Plan 2005, its height and bulk as presented to 10 Elwin Street, and the extent of the first-floor addition towards the rear boundary.' 'Whether the objectives of the FSR control in cl 4.4 of Strathfield Local Environmental Plan 2012 were relevant even if the proposal complied with the numerical FSR development standard.' 'Whether disputed basement/garage space should be counted as gross floor area for FSR purposes.']

Ratio Decidendi

The proposed reinstatement of bedroom 4 was unacceptable because it protruded too far towards the rear and, from the lower adjoining property at 10 Elwin Street, was perceived as too high and bulky. It failed to respect the predominant form, scale and character of nearby dwellings, diminished openness between built elements, did not protect adjoining amenity, and did not respond to the topographical difference between the site and its eastern neighbour. For those reasons it was inconsistent with the identified objectives and controls of Strathfield Consolidated Development Control Plan 2005, so the modification application was refused.

Court Disposition

Appeal dismissed and application to modify development consent DA 2018/176 refused.

Orders

  • ['Appeal dismissed.' 'Application to modify development consent DA 2018/176 is refused.' 'Exhibits other than exhibits A and B to be returned.']