Pomering v Hawkesbury City Council [2018] NSWLEC 1146

Pomering v Hawkesbury City Council [2018] NSWLEC 1146

The amended proposal retained the essential elements of the original development application and responded to Council issues, so it was not a new development application and did not require renotification. With conditions, allocation of two parking spaces to the existing dwelling and two to the boarding house was sufficient in the site's accessible town centre location, no accessible parking condition was required, bin collection was workable, amenity for future occupants was adequate, and the proposal did not unreasonably constrain adjoining development. Conditions restricting boarders by income and requiring the heritage dwelling to be common property were not justified. The proposal...

Jurisdiction
Australia
Judgment Date
23 March 2018
Procedural Posture
Class 1 Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Judgment After Mandatory Conciliation Was Terminated and the Applicant Was Granted Leave to Rely on an Amended Proposal
Outcome
Appeal upheld; development application approved subject to conditions of consent.
Legal Topics
['boarding House Development' 'strata Subdivision' 'car Parking' 'accessible Parking' 'amenity' 'development Application Amendments' 'conditions of Consent']
['planning and Environment' 'development Consent' 'affordable Rental Housing' 'heritage'] ['boarding House Development' 'strata Subdivision' 'car Parking' 'accessible Parking' 'amenity' 'development Application Amendments' 'conditions of Consent']

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 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Judgment After Mandatory Conciliation Was Terminated and the Applicant Was Granted Leave to Rely on an Amended Proposal

Legal Issues

  1. 1 ["Whether the amended proposal was within the Court's power to amend a development application or amounted to a new development application" 'Whether the amended proposal required renotification under the Hawkesbury City Council Development Control Plan' 'Whether sufficient onsite car parking was provided for the boarding house and existing dwelling' 'Whether an accessible car parking space should be required for the accessible boarding room' 'Whether the proposal provided adequate amenity for future boarding house occupants and unreasonably constrained adjoining development' 'Whether conditions restricting boarders to very low, low or moderate income households should be imposed' 'Whether the existing heritage dwelling should be identified as common property in the strata plan']

Ratio Decidendi

The amended proposal retained the essential elements of the original development application and responded to Council issues, so it was not a new development application and did not require renotification. With conditions, allocation of two parking spaces to the existing dwelling and two to the boarding house was sufficient in the site's accessible town centre location, no accessible parking condition was required, bin collection was workable, amenity for future occupants was adequate, and the proposal did not unreasonably constrain adjoining development. Conditions restricting boarders by income and requiring the heritage dwelling to be common property were not justified. The proposal...

Court Disposition

Appeal upheld; development application approved subject to conditions of consent.

Orders

  • ['The appeal is upheld.' 'Development Application No. 0123/17 for the strata subdivision of 179 Windsor Street, Richmond, into two allotments and common property, and the construction of a 13 room boarding house on Lot 2 is approved, subject to the conditions of consent at Annexure A.' 'The exhibits, other than...