Shahatit v Penrith City Council [2013] NSWLEC 1142

Shahatit v Penrith City Council [2013] NSWLEC 1142

The Court found the development did not achieve the minimum required landscaped area under clause 12 of the LEP. The SEPP 1 objection to the landscaped area standard could not be upheld because compliance was neither unreasonable nor unnecessary, and the objectives of the standard were not sufficiently met. As the SEPP 1 objection failed, approval of the development was precluded. Additionally, the application was inconsistent with the aims of the LEP, the objectives of the 2(b) zone, development controls in the LEP and DCP, including insufficient landscaping, failure to provide safe access, non-compliance with the frontage control, and an unsuitable location. The appeal was therefore...

Jurisdiction
Australia
Judgment Date
02 August 2013
Procedural Posture
Appeal / Final Judgment
Outcome
Appeal dismissed
Legal Topics
['development Application' 'child Care Centre' 'development Standards' 'landscaped Area' 'building Envelope' 'rear Boundary Setbacks' 'development Control Plan' 'public Interest']
['environmental Planning and Development'] ['development Application' 'child Care Centre' 'development Standards' 'landscaped Area' 'building Envelope' 'rear Boundary Setbacks' 'development Control Plan' 'public Interest']

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Procedural Posture

Appeal / Final Judgment

Legal Issues

  1. 1 ['Whether the development provides sufficient landscaped open space as required by the LEP' 'Whether SEPP 1 objections to development standards for landscaped area, building envelope, and rear boundary setbacks should be upheld' 'Whether the development is compatible with existing residential character and impacts amenity' 'Whether the design of the carpark provides for safe vehicular and pedestrian access' 'Whether the site is adequate and in a suitable location for a child care centre' 'Whether the application is in the public interest']

Ratio Decidendi

The Court found the development did not achieve the minimum required landscaped area under clause 12 of the LEP. The SEPP 1 objection to the landscaped area standard could not be upheld because compliance was neither unreasonable nor unnecessary, and the objectives of the standard were not sufficiently met. As the SEPP 1 objection failed, approval of the development was precluded. Additionally, the application was inconsistent with the aims of the LEP, the objectives of the 2(b) zone, development controls in the LEP and DCP, including insufficient landscaping, failure to provide safe access, non-compliance with the frontage control, and an unsuitable location. The appeal was therefore...

Court Disposition

Appeal dismissed

Orders

  • ['The appeal is dismissed.' 'DA12/0420 for demolition of an existing two storey dwelling and construction of a new building and use the ground level of that building as a 20 place child care centre and the upper level as a dwelling at 85 Warburton Crescent Werrington County is refused consent.' 'The exhibits, other...