Faseas v Coffs Harbour City Council [2018] NSWLEC 1249

Faseas v Coffs Harbour City Council [2018] NSWLEC 1249

Although the Court was satisfied that the appeal was competent, development consent could not be granted because the applicant's clause 4.6 written request did not adequately demonstrate that compliance with the 800 square metre minimum lot size for dual occupancy was unreasonable or unnecessary, did not demonstrate sufficient environmental planning grounds, and did not establish consistency with the objectives of the development standard or the R2 zone. Independently, the plans and information before the Court were not capable of consent because the extent of works required for BCA compliance and structural adequacy was uncertain and could not appropriately be deferred to a Building...

Jurisdiction
Australia
Judgment Date
23 May 2018
Procedural Posture
Class 1 Development Application Appeal Against Deemed Refusal / Hearing Following Termination of S34 AA Conciliation Conference
Outcome
Appeal dismissed and development consent refused.
Legal Topics
['development Application' 'deemed Refusal Appeal' 'dual Occupancy' 'minimum Lot Size Development Standard' 'clause 4.6 Variation Request' 'building Code of Australia Compliance' 'adequacy of Development Application Information']
['planning and Environment Law' 'development Control'] ['development Application' 'deemed Refusal Appeal' 'dual Occupancy' 'minimum Lot Size Development Standard' 'clause 4.6 Variation Request' 'building Code of Australia Compliance' 'adequacy of Development Application Information']

Case Brief

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Procedural Posture

Class 1 Development Application Appeal Against Deemed Refusal / Hearing Following Termination of S34 AA Conciliation Conference

Legal Issues

  1. 1 ['Whether the appeal was filed within time and was competent' 'Whether the minimum lot size development standard for dual occupancy in Zone R2 should be varied under clause 4.6 of Coffs Harbour Local Environmental Plan 2013' 'Whether consent should be granted for the proposed change of use from single dwelling to dual occupancy' 'Whether adequate information had been provided about necessary works, structural adequacy and BCA compliance']

Ratio Decidendi

Although the Court was satisfied that the appeal was competent, development consent could not be granted because the applicant's clause 4.6 written request did not adequately demonstrate that compliance with the 800 square metre minimum lot size for dual occupancy was unreasonable or unnecessary, did not demonstrate sufficient environmental planning grounds, and did not establish consistency with the objectives of the development standard or the R2 zone. Independently, the plans and information before the Court were not capable of consent because the extent of works required for BCA compliance and structural adequacy was uncertain and could not appropriately be deferred to a Building...

Court Disposition

Appeal dismissed and development consent refused.

Orders

  • ['The appeal is dismissed.' 'Development Application No DA 1035/16DA for the change of use from a single dwelling to dual occupancy at 4 First Avenue, Arrawarra Headland, is refused consent.' 'The exhibits, other than exhibits 1 and B, are returned.']