Nasr v Canterbury-Bankstown Council [2017] NSWLEC 1580

Nasr v Canterbury-Bankstown Council [2017] NSWLEC 1580

The modification application was acceptable because, although the basement parking layout was tight and not ideal and DCP 2012 Amendment 3 was considered, the car lift was workable, the proposal achieved the required parking accommodation, the increase in traffic generation was negligible, waiting times for car stackers were tolerable, and B85 and B99 swept paths demonstrated compliant access could be achieved. The appeal was therefore upheld and the modification application approved subject to conditions.

Jurisdiction
Australia
Judgment Date
17 October 2017
Procedural Posture
Class 1 Appeal Pursuant to S 97 AA of the Environmental Planning and Assessment Act 1979 Against Refusal of a Modification Application / Final Determination After Mandatory Conciliation Under S 34 of the Land and Environment Court Act 1979 Was Terminated and Leave Was Granted to Rely on an Amended Proposal
Outcome
Appeal upheld; modification application approved subject to consolidated conditions at Annexure A; exhibits other than exhibits 1 and H returned.
Legal Topics
['modification Application' 'mixed Use Development' 'mechanical Parking Devices' 'car Stackers' 'basement Car Parking' 'development Control Plan' 'traffic Engineering Evidence']
['planning and Environment' 'development Consent Modification'] ['modification Application' 'mixed Use Development' 'mechanical Parking Devices' 'car Stackers' 'basement Car Parking' 'development Control Plan' 'traffic Engineering Evidence']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 1 Appeal Pursuant to S 97 AA of the Environmental Planning and Assessment Act 1979 Against Refusal of a Modification Application / Final Determination After Mandatory Conciliation Under S 34 of the Land and Environment Court Act 1979 Was Terminated and Leave Was Granted to Rely on an Amended Proposal

Legal Issues

  1. 1 ['Whether the introduction of car stackers and changes to basement parking provided satisfactory car parking arrangements for the modified mixed use development.' 'Whether DCP 2012 Amendment 3, which stated that mechanical parking devices would not be supported, should be taken into consideration for a modification application lodged before that amendment commenced.' 'Whether sufficient information was provided to assess traffic manoeuvrability within the basement.' 'Whether conditions requiring specified aisle dimensions and works-as-executed plans should be imposed.']

Ratio Decidendi

The modification application was acceptable because, although the basement parking layout was tight and not ideal and DCP 2012 Amendment 3 was considered, the car lift was workable, the proposal achieved the required parking accommodation, the increase in traffic generation was negligible, waiting times for car stackers were tolerable, and B85 and B99 swept paths demonstrated compliant access could be achieved. The appeal was therefore upheld and the modification application approved subject to conditions.

Court Disposition

Appeal upheld; modification application approved subject to consolidated conditions at Annexure A; exhibits other than exhibits 1 and H returned.

Orders

  • ['The appeal is upheld.' 'Modification Application No. 559/2013/A to modify development consent 559/2013 for the construction of a mixed use development at 702-704 Canterbury Road, Belmore, is approved, subject to the consolidated conditions at Annexure A.' 'The exhibits, other than exhibits 1 and H, are returned.']