S & R Properties Pty Limited v Ashfield Council [2004] NSWLEC 143

S & R Properties Pty Limited v Ashfield Council [2004] NSWLEC 143

The appeal was upheld because, after assessment under s 79C of the Environmental Planning and Assessment Act 1979, the proposed mixed use development was found to be satisfactory: its height, bulk, setbacks and relationship to Darrell Jackson Gardens were acceptable; impacts on No 123A Smith Street and No 13 Hardie Avenue did not warrant refusal; the northern frontage and arcade could be acceptable with conditions; traffic, loading and parking arrangements were adequate; the proposal complied with applicable floor space ratio controls and was not overdevelopment; and the proposal achieved good design under SEPP65.

Jurisdiction
Australia
Judgment Date
19 March 2004
Procedural Posture
Class 1 Development Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 / Appeal Against Deemed Refusal of Development Application No 434/2002
Outcome
Appeal upheld; development application approved subject to conditions.
Legal Topics
['mixed Use Retail/residential Development Application' 'deemed Refusal' 'assessment Under S 79 C of the Environmental Planning and Assessment Act 1979' 'relationship With Darrell Jackson Gardens' 'heritage Impacts on No 123 a Smith Street' 'overshadowing and Privacy Impacts on No 13 Hardie Avenue' 'sepp65 Design Quality' 'retail Car Parking and Loading Dock Access' 'stormwater Drainage Diversion' 'subdivision']
['environmental Planning and Assessment' 'development Consent' 'land Use Planning' 'heritage' 'traffic and Parking' 'urban Design'] ['mixed Use Retail/residential Development Application' 'deemed Refusal' 'assessment Under S 79 C of the Environmental Planning and Assessment Act 1979' 'relationship With Darrell Jackson Gardens' 'heritage Impacts on No 123 a Smith Street' 'overshadowing and Privacy Impacts on No 13 Hardie Avenue' 'sepp65 Design Quality' 'retail Car Parking and Loading Dock Access' 'stormwater Drainage Diversion' 'subdivision']

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Procedural Posture

Class 1 Development Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 / Appeal Against Deemed Refusal of Development Application No 434/2002

Legal Issues

  1. 1 ['Whether the height, bulk, scale and architectural design of the proposed development when viewed from Darrell Jackson Gardens and the northern right of footway was unacceptable or visually obtrusive.' 'Whether the proposal detracted from the heritage values and amenity of No 123A Smith Street.' 'Whether the proposal would cause unreasonable overshadowing, overlooking or visual bulk impacts to No 13 Hardie Avenue.' 'Whether the northern frontage, arcade and pedestrian links were acceptable in urban design and safety terms.' 'Whether traffic conflicts in Hardie Avenue and loading dock arrangements, including the use of 11m trucks rather than semi-trailers, were acceptable.' 'Whether the development provided adequate internal residential amenity and represented overdevelopment of the site.' 'Whether there was sufficient retail car parking.' 'Whether owner and development consent issues for the proposed drainage diversion prevented approval.']

Ratio Decidendi

The appeal was upheld because, after assessment under s 79C of the Environmental Planning and Assessment Act 1979, the proposed mixed use development was found to be satisfactory: its height, bulk, setbacks and relationship to Darrell Jackson Gardens were acceptable; impacts on No 123A Smith Street and No 13 Hardie Avenue did not warrant refusal; the northern frontage and arcade could be acceptable with conditions; traffic, loading and parking arrangements were adequate; the proposal complied with applicable floor space ratio controls and was not overdevelopment; and the proposal achieved good design under SEPP65.

Court Disposition

Appeal upheld; development application approved subject to conditions.

Orders

  • ['The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.' 'Development application No 434/2002 lodged with the respondent council on 1 December 2002 to demolish the existing supermarket and shops and the rear section of the dwelling on No 123A Smith Street, to erect a mixed use...