Spiros Paul Antonatos v Inner West Council [2017] NSWLEC 1270

Spiros Paul Antonatos v Inner West Council [2017] NSWLEC 1270

Although cl 29(4) of the ARH SEPP meant that a cl 4.6 written variation request was not necessary, the Court still had to consider the merit of the proposed height and FSR exceedances. The nearby residential flat buildings relied on by the applicant were approved under earlier controls and did not demonstrate abandonment of the current LEP controls or represent the predominant or desired local character. The proposed additional height and floor space to an already height-non-compliant building would be inconsistent with the bulk and scale of the majority of existing development in the R2 local area and would not be in harmony with the character of the street or local area. Because the...

Jurisdiction
Australia
Judgment Date
31 May 2017
Procedural Posture
Class 1 Appeal Under Section 97(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application 10.2016.243.1 / Final Judgment After Hearing
Outcome
Appeal dismissed; development application refused.
Legal Topics
['boarding House Development Application' 'floor Space Ratio' 'building Height' 'character of Local Area' 'parking' 'state Environmental Planning Policy (affordable Rental Housing)' 'clause 4.6 Variation Request']
['planning and Environment' 'development Consent' 'affordable Rental Housing'] ['boarding House Development Application' 'floor Space Ratio' 'building Height' 'character of Local Area' 'parking' 'state Environmental Planning Policy (affordable Rental Housing)' 'clause 4.6 Variation Request']

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Procedural Posture

Class 1 Appeal Under Section 97(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application 10.2016.243.1 / Final Judgment After Hearing

Legal Issues

  1. 1 ['Whether the proposed floor space ratio and building height exceedances were appropriate having regard to the Ashfield Local Environmental Plan 2013 and State Environmental Planning Policy (Affordable Rental Housing).' 'Whether the design of the proposed boarding house was compatible with the character of the local area under cl 30A of the State Environmental Planning Policy (Affordable Rental Housing).' 'Whether the lack of onsite car parking supported refusal of consent.' 'Whether the proposed boarding house capacity required an onsite manager.' 'Whether the proposal was bona fide affordable housing development under the State Environmental Planning Policy (Affordable Rental Housing).']

Ratio Decidendi

Although cl 29(4) of the ARH SEPP meant that a cl 4.6 written variation request was not necessary, the Court still had to consider the merit of the proposed height and FSR exceedances. The nearby residential flat buildings relied on by the applicant were approved under earlier controls and did not demonstrate abandonment of the current LEP controls or represent the predominant or desired local character. The proposed additional height and floor space to an already height-non-compliant building would be inconsistent with the bulk and scale of the majority of existing development in the R2 local area and would not be in harmony with the character of the street or local area. Because the...

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed.' 'Development application 10.2016.243.1 for a boarding house at 99A Bland Street, Ashfield is refused.' 'The exhibits, other than Exhibits A, B and 1, are returned.']