Malass v Strathfield Municipal Council [2022] NSWLEC 1160

Malass v Strathfield Municipal Council [2022] NSWLEC 1160

The proposal exceeded the permissible floor space ratio development standard by 68m2 (15.6%), and the applicant’s cl 4.6 written request did not demonstrate sufficient environmental planning grounds to justify the contravention; as a result, the development application appeal was dismissed, the building information certificate appeal was refused, and the development control order (stop work order) remains in force until a construction certificate is issued.

Jurisdiction
Australia
Judgment Date
12 May 2022
Procedural Posture
Class 1 Appeal / Final Judgment
Outcome
All three appeals dismissed; costs and orders made as set out below.
Legal Topics
['development Application' 'floor Space Ratio' 'building Information Certificate' 'development Control Order' 'strathfield LEP 2012' 'clause 4.6 Variation' 'environmental Planning and Assessment Act 1979']
['planning Law' 'environmental Law' 'administrative Law'] ['development Application' 'floor Space Ratio' 'building Information Certificate' 'development Control Order' 'strathfield LEP 2012' 'clause 4.6 Variation' 'environmental Planning and Assessment Act 1979']

Case Brief

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Procedural Posture

Class 1 Appeal / Final Judgment

Legal Issues

  1. 1 ['Whether the proposed development complied with floor space ratio (FSR) development standard in cl 4.4C of the Strathfield LEP 2012' 'Whether areas in the basement should be excluded from GFA calculation under the LEP' "Whether the applicant's cl 4.6 written request established justification to vary the FSR standard" 'Whether there are sufficient environmental planning grounds to permit the FSR exceedance' 'Whether building information certificate should be issued for unauthorised works' 'Whether development control order (stop work order) should remain in force']

Ratio Decidendi

The proposal exceeded the permissible floor space ratio development standard by 68m2 (15.6%), and the applicant’s cl 4.6 written request did not demonstrate sufficient environmental planning grounds to justify the contravention; as a result, the development application appeal was dismissed, the building information certificate appeal was refused, and the development control order (stop work order) remains in force until a construction certificate is issued.

Court Disposition

All three appeals dismissed; costs and orders made as set out below.

Orders

  • ["Applicant to pay respondent's costs thrown away in respect of amendments as agreed or assessed (DA proceedings)." 'Clause 4.6 written request to vary the FSR standard is not approved.' 'DA appeal dismissed; development consent refused for DA2020.239.' 'Exhibits returned except for A, J, K, L, N, O, P, BA, 1, 7,...