Portier Family Pty Ltd v Waverley Council [2024] NSWLEC 1156

Portier Family Pty Ltd v Waverley Council [2024] NSWLEC 1156

The appeal is upheld, and development consent is granted to the amended application on the basis that existing use rights permit the proposed use, the Clause 4.6 written request justifies variance to the floor space ratio development standard, and the amended application satisfies relevant planning objectives and resolves all contentions and public submissions.

Parties
Applicant: Portier Family Pty Ltd; Respondent: Waverley Council
Jurisdiction
Australia
Judgment Date
05 April 2024
Procedural Posture
Class 1 / Appeal From Deemed Refusal of Development Application, Determined After Conciliation Conference
Outcome
Appeal upheld and development consent granted subject to conditions and costs order.
Legal Topics
Development Application, Shop Top Housing, Existing Use Rights, Floor Space Ratio, Clause 4.6 Variation, Conciliation Agreement, Development Standards
Planning and Environment Development Application Shop Top Housing Existing Use Rights Floor Space Ratio Clause 4.6 Variation Conciliation Agreement Development Standards

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Parties

Portier Family Pty Ltd

Applicant

Waverley Council

Respondent

Procedural Posture

Class 1 / Appeal From Deemed Refusal of Development Application, Determined After Conciliation Conference

Legal Issues

  1. 1 Whether development consent should be granted for amended shop-top housing development despite exceeding floor space ratio standard
  2. 2 Whether existing use rights permit otherwise prohibited shop-top housing use
  3. 3 Whether the Applicant's Clause 4.6 request justifies a variation of the floor space ratio standard

Ratio Decidendi

The appeal is upheld, and development consent is granted to the amended application on the basis that existing use rights permit the proposed use, the Clause 4.6 written request justifies variance to the floor space ratio development standard, and the amended application satisfies relevant planning objectives and resolves all contentions and public submissions.

Court Disposition

Appeal upheld and development consent granted subject to conditions and costs order.

Orders

  • Leave granted to amend Development Application DA-44/2023 and rely on amended plans and documents in Condition 1 at Annexure A.
  • Applicant to pay Respondent's costs thrown away as a result of amending the Development Application in the agreed amount of $18,000 within 28 days.