St George Property Construction Pty Ltd v Cumberland Council [2017] NSWLEC 1433

St George Property Construction Pty Ltd v Cumberland Council [2017] NSWLEC 1433

The appeal was upheld because the applicant had reasonably demonstrated that the alternative amalgamation pattern complied with the objectives of the DCP: properties in Telfer Place could not reasonably be acquired, vehicular access from Great Western Highway was avoided by using 4 Joyner Street, 6-8 Joyner Street retained sufficient area and frontage to be reasonably redeveloped, and the development otherwise satisfied the Council subject to conditions. Conditions requiring construction, lighting and ongoing maintenance of the pedestrian path were not justified before the link could continue through to Telfer Place; only provision of the land for the future Right of Footway was required.

Jurisdiction
Australia
Judgment Date
22 August 2017
Procedural Posture
Class 1 Appeal Under Section 97(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application DA 2016/269 / Principal Judgment After Section 34 Conciliation Was Terminated and the Matter Proceeded to Hearing
Outcome
Appeal upheld; Development Application DA 2016/269 approved subject to conditions.
Legal Topics
['development Application' 'site Consolidation and Amalgamation' 'shop Top Housing Development' 'pedestrian Link and Right of Footway Conditions' 'holroyd Development Control Plan 2013' 'holroyd Local Environmental Plan 2013']
['planning and Environment Law' 'development Consent'] ['development Application' 'site Consolidation and Amalgamation' 'shop Top Housing Development' 'pedestrian Link and Right of Footway Conditions' 'holroyd Development Control Plan 2013' 'holroyd Local Environmental Plan 2013']

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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 DA 2016/269 / Principal Judgment After Section 34 Conciliation Was Terminated and the Matter Proceeded to Hearing

Legal Issues

  1. 1 ['Whether the amalgamation pattern required by the Holroyd Development Control Plan 2013 should be varied to permit the development where properties in Telfer Place could not be acquired and alternative vehicular access was proposed through 4 Joyner Street.' 'Whether 6-8 Joyner Street could reasonably be redeveloped without 4 Joyner Street and whether an indicative development layout or acquisition evidence for 6 and 8 Joyner Street was required.' 'Whether proposed consent conditions requiring construction, lighting and ongoing maintenance of the pedestrian path/Right of Footway should be imposed before the link could continue through to Telfer Place.']

Ratio Decidendi

The appeal was upheld because the applicant had reasonably demonstrated that the alternative amalgamation pattern complied with the objectives of the DCP: properties in Telfer Place could not reasonably be acquired, vehicular access from Great Western Highway was avoided by using 4 Joyner Street, 6-8 Joyner Street retained sufficient area and frontage to be reasonably redeveloped, and the development otherwise satisfied the Council subject to conditions. Conditions requiring construction, lighting and ongoing maintenance of the pedestrian path were not justified before the link could continue through to Telfer Place; only provision of the land for the future Right of Footway was required.

Court Disposition

Appeal upheld; Development Application DA 2016/269 approved subject to conditions.

Orders

  • ['The appeal is upheld.' 'Development Application DA 2016/269 for demolition of existing structures, consolidation of lots and construction of a shop top housing development at 102-108 Great Western Highway and 4 Joyner Street, Westmead is approved subject to the conditions set out in Annexure "A".' 'The exhibits,...