So Nash Pty Limited v Inner West Council [2018] NSWLEC 1327

So Nash Pty Limited v Inner West Council [2018] NSWLEC 1327

Where a heritage constrained site cannot provide the requisite off-street parking, and the driveway crossover would remove valuable on-street public parking, the condition deleting the on-site car space is justified because the public benefit outweighs the private interest. A consent condition outright excluding all occupants from resident parking schemes is invalid where it removes the Council's discretion to consider unique site constraints; such a condition should not be imposed but the policy intention may be taken into account in future permit applications.

Jurisdiction
Australia
Judgment Date
03 July 2018
Procedural Posture
Appeal / Judgment After Hearing (final Orders and Directions Pending)
Outcome
Appeal partly allowed; conditions varied
Legal Topics
['development Consent Conditions' 'heritage Item Adaptive Reuse' 'car Parking in Development Applications' 'resident Parking Scheme Eligibility' 'deferred Commencement Conditions']
['planning and Environment'] ['development Consent Conditions' 'heritage Item Adaptive Reuse' 'car Parking in Development Applications' 'resident Parking Scheme Eligibility' 'deferred Commencement Conditions']

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Procedural Posture

Appeal / Judgment After Hearing (final Orders and Directions Pending)

Legal Issues

  1. 1 ["Whether it was appropriate to impose conditions deleting an off-street car parking space and excluding future occupants from Council's Resident Parking Scheme on a development consent for a heritage item"]

Ratio Decidendi

Where a heritage constrained site cannot provide the requisite off-street parking, and the driveway crossover would remove valuable on-street public parking, the condition deleting the on-site car space is justified because the public benefit outweighs the private interest. A consent condition outright excluding all occupants from resident parking schemes is invalid where it removes the Council's discretion to consider unique site constraints; such a condition should not be imposed but the policy intention may be taken into account in future permit applications.

Court Disposition

Appeal partly allowed; conditions varied

Orders

  • ["Applicant to file and serve amended architectural drawings and documentation by 20 July 2018 reflecting the Court's determinations." 'Respondent to file and serve settled conditions of consent by 27 July 2018 reflecting deletions and amendments determined by the Court, including deleting condition 83 and amending...