Adam Hughes Pty Ltd v Penrith City Council [2018] NSWLEC 1369

Adam Hughes Pty Ltd v Penrith City Council [2018] NSWLEC 1369

The height variation was upheld because the written request adequately demonstrated that compliance with the 18m height standard was unnecessary in the circumstances, the objectives of the R4 High Density Residential zone and height standard were achieved notwithstanding the exceedance, and sufficient environmental planning grounds justified the variation, including improved amenity and response to site conditions. Although 30 Lethbridge Street would be technically isolated, refusal was not warranted because amalgamation was shown not to be feasible, the timing and formality of negotiations were matters for weight rather than fundamental preconditions, and orderly and economic...

Jurisdiction
Australia
Judgment Date
20 July 2018
Procedural Posture
Class 1 Development Appeal / Appeal Against Penrith City Council's Refusal of Development Application No. Da/16/0521, Determined After Amended Plans Were Relied on
Outcome
Appeal upheld; cl 4.6 objection upheld; development consent granted subject to conditions.
Legal Topics
['residential Flat Building' 'clause 4.6 Variation to Building Height Development Standard' 'site Isolation and Amalgamation' 'orderly and Economic Development' 'apartment Design Guide Compliance' 'future Residential Amenity']
['planning and Environment Law' 'development Consent' 'residential Development'] ['residential Flat Building' 'clause 4.6 Variation to Building Height Development Standard' 'site Isolation and Amalgamation' 'orderly and Economic Development' 'apartment Design Guide Compliance' 'future Residential Amenity']

Case Brief

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Procedural Posture

Class 1 Development Appeal / Appeal Against Penrith City Council's Refusal of Development Application No. Da/16/0521, Determined After Amended Plans Were Relied on

Legal Issues

  1. 1 ['Whether the requested variation to the maximum building height was well founded and worthy of support' 'Whether the proposed development resulted in the isolation of the adjoining property at 30 Lethbridge Street' 'Whether orderly and economic use and development of 30 Lethbridge Street could be achieved if amalgamation was not feasible']

Ratio Decidendi

The height variation was upheld because the written request adequately demonstrated that compliance with the 18m height standard was unnecessary in the circumstances, the objectives of the R4 High Density Residential zone and height standard were achieved notwithstanding the exceedance, and sufficient environmental planning grounds justified the variation, including improved amenity and response to site conditions. Although 30 Lethbridge Street would be technically isolated, refusal was not warranted because amalgamation was shown not to be feasible, the timing and formality of negotiations were matters for weight rather than fundamental preconditions, and orderly and economic...

Court Disposition

Appeal upheld; cl 4.6 objection upheld; development consent granted subject to conditions.

Orders

  • ['The applicant is granted leave to rely on amended plans.' "As agreed pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicants are to pay the Respondent's costs thrown away by reason of the amendments to the plans provided on 21 May 2018, as agreed or assessed." "As agreed...