Ozzy States Pty Ltd v Inner West Council [2018] NSWLEC 1120

Ozzy States Pty Ltd v Inner West Council [2018] NSWLEC 1120

The appeal was dismissed because the clause 4.6 request did not adequately demonstrate sufficient environmental planning grounds to justify the FSR contravention or that compliance with the FSR standard was unreasonable or unnecessary. The additional upper level would add bulk and scale in a highly sensitive heritage location, was not shown to accord with the desired future character or the objectives of the FSR standard, and would not conserve the setting of the adjoining heritage listed Fire Station. As the clause 4.6 request was not upheld, consent could not be granted.

Jurisdiction
Australia
Judgment Date
09 March 2018
Procedural Posture
Class 1 Appeal Under Then Section 97(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' 'alterations and Additions to Approved Development' 'floor Space Ratio Non Compliance' 'clause 4.6 Request' 'heritage Impacts' 'desired Future Character' 'parking Provision' 'public Interest']
['environmental Planning and Development' 'land Use Planning' 'heritage Conservation'] ['development Application' 'alterations and Additions to Approved Development' 'floor Space Ratio Non Compliance' 'clause 4.6 Request' 'heritage Impacts' 'desired Future Character' 'parking Provision' 'public Interest']

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Procedural Posture

Class 1 Appeal Under Then Section 97(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Final Determination

Legal Issues

  1. 1 ["Whether the applicant's clause 4.6 request justified contravention of the floor space ratio development standard." 'Whether the proposed additional level, bulk and scale were compatible with the desired future character of the area and the sensitive heritage context.' 'Whether the proposed development conserved the heritage significance of nearby heritage items and the heritage conservation area.' 'Whether approval of excess floor space for the Beijou building provided a sufficient precedent or justification for the proposed FSR exceedance.' 'Whether issues concerning two consents, surplus parking, the car lift and disputed conditions needed to be determined if the clause 4.6 request failed.']

Ratio Decidendi

The appeal was dismissed because the clause 4.6 request did not adequately demonstrate sufficient environmental planning grounds to justify the FSR contravention or that compliance with the FSR standard was unreasonable or unnecessary. The additional upper level would add bulk and scale in a highly sensitive heritage location, was not shown to accord with the desired future character or the objectives of the FSR standard, and would not conserve the setting of the adjoining heritage listed Fire Station. As the clause 4.6 request was not upheld, consent could not be granted.

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed.' 'Development Application D/2017/277 for alterations and additions to an approved mixed used development at 383 and 387-389 Darling Street and 4 North Street, Balmain is refused.' 'The exhibits are returned except Exhibits A and 1.']