Samcourt Pty Ltd v Inner West Council [2018] NSWLEC 1442

Samcourt Pty Ltd v Inner West Council [2018] NSWLEC 1442

Although the proposal's mixed uses are permissible and the commercial premises are capable of creative purpose use, the breach of the floor space ratio (FSR) standard results in excessive bulk, especially at the Phillip Lane frontage, causing adverse visual and amenity impacts. The written request does not adequately establish that compliance with the FSR standard is unreasonable or unnecessary, nor sufficient environmental planning grounds to justify the contravention. The development is not consistent with the objectives of the FSR standard, and the state of satisfaction required by cl 4.6(4)(a) MLEP 2011 is not reached, mandating refusal of consent.

Jurisdiction
Australia
Judgment Date
21 August 2018
Procedural Posture
Appeal / Final Judgment
Outcome
Appeal dismissed; development application refused
Legal Topics
['development Application' 'permissibility of Use' 'characterisation of Use' 'creative Purpose' 'floor Space Ratio' 'variation of Development Standard' 'consistency With Objectives' 'adequacy of Cl 4.6 Request']
['planning and Environment'] ['development Application' 'permissibility of Use' 'characterisation of Use' 'creative Purpose' 'floor Space Ratio' 'variation of Development Standard' 'consistency With Objectives' 'adequacy of Cl 4.6 Request']

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Procedural Posture

Appeal / Final Judgment

Legal Issues

  1. 1 ['Whether the proposed mixed use development is permissible within the zoning table' "Whether the business or office premises will be used for a 'creative purpose' as required by cl 6.12(3) of the MLEP 2011" 'Whether development consent can be granted notwithstanding breach of the floor space ratio development standard' 'Whether the written request justifies the variation of the FSR standard']

Ratio Decidendi

Although the proposal's mixed uses are permissible and the commercial premises are capable of creative purpose use, the breach of the floor space ratio (FSR) standard results in excessive bulk, especially at the Phillip Lane frontage, causing adverse visual and amenity impacts. The written request does not adequately establish that compliance with the FSR standard is unreasonable or unnecessary, nor sufficient environmental planning grounds to justify the contravention. The development is not consistent with the objectives of the FSR standard, and the state of satisfaction required by cl 4.6(4)(a) MLEP 2011 is not reached, mandating refusal of consent.

Court Disposition

Appeal dismissed; development application refused

Orders

  • ['The appeal is dismissed.' 'The development application (DA 201600628) for a four-storey mixed use development containing 22 business or office tenancies, 10 residential apartments and 32 basement car parking spaces at 2C Gladstone Street, Newtown, is refused.' 'The exhibits are returned, except for Exhibits A, B...