Tasman Serviced Apartments Pty Ltd v Burwood Council [2016] NSWLEC 1310

Tasman Serviced Apartments Pty Ltd v Burwood Council [2016] NSWLEC 1310

The amended application resolved the Council's planning, amenity, operational management, parking and traffic contentions on the expert evidence. The residents' concerns were honestly held but were not supported by objective facts or expert evidence and therefore were given little weight. Because the proposed uses were permissible and the remaining issues were addressed by amended plans, Operational Plans of Management, a Voluntary Planning Agreement for parking deficiency and conditions, conditional approval was appropriate.

Jurisdiction
Australia
Judgment Date
27 July 2016
Procedural Posture
Class 1 Appeal Against Refusal of Development Application Under S 97(1) of the Environmental Planning and Assessment Act 1979 / Determination After S 34 Conciliation Conference Was Terminated and the Parties Requested a Further Hearing Pursuant to S 34(b)(i)
Outcome
Appeal upheld; amended development application approved subject to conditions.
Legal Topics
['development Application' 'boarding House' 'serviced Apartments' 'amenity Impacts' 'resident Objections' 'floor Space Ratio' 'parking' 'operational Management']
['planning and Environment Law' 'development Appeals' 'affordable Rental Housing'] ['development Application' 'boarding House' 'serviced Apartments' 'amenity Impacts' 'resident Objections' 'floor Space Ratio' 'parking' 'operational Management']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 1 Appeal Against Refusal of Development Application Under S 97(1) of the Environmental Planning and Assessment Act 1979 / Determination After S 34 Conciliation Conference Was Terminated and the Parties Requested a Further Hearing Pursuant to S 34(b)(i)

Legal Issues

  1. 1 ["Whether the amended development application for conversion of existing commercial space into a boarding house and serviced apartments should be approved despite residents' objections." 'Whether the amended proposal satisfactorily addressed floor space ratio, amenity, operational management, parking and traffic contentions.' "Whether residents' safety, security and amenity concerns provided a reasonable and rational basis for refusal."]

Ratio Decidendi

The amended application resolved the Council's planning, amenity, operational management, parking and traffic contentions on the expert evidence. The residents' concerns were honestly held but were not supported by objective facts or expert evidence and therefore were given little weight. Because the proposed uses were permissible and the remaining issues were addressed by amended plans, Operational Plans of Management, a Voluntary Planning Agreement for parking deficiency and conditions, conditional approval was appropriate.

Court Disposition

Appeal upheld; amended development application approved subject to conditions.

Orders

  • ['The appeal is upheld.' "Development application DA 47/2015 lodged on 24 March 2015 as amended and detailed in the plans marked Exhibit B prepared by CDR Design Pty Ltd for alterations and additions to levels 2 and 3 of the existing building, change of use from approved offices to a boarding house and serviced...