Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 1017

Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 1017

Consent was refused because the proposed development, within the Penrith City Centre, would result in overshadowing of public open space contrary to cl 8.2(3) of the LEP, and the proposal did not exhibit design excellence as required by cl 8.4, particularly due to the interface and design of podium parking and active streetscapes. Although an architectural design competition was found to be held in relation to the development, the jurisdictional requirements were not satisfied and consent could not be granted.

Jurisdiction
Australia
Judgment Date
14 January 2022
Procedural Posture
Appeal (class 1) Land and Environment Court / Final Judgment and Orders
Outcome
Appeal dismissed; development application refused; costs thrown away on amendments ordered to be paid by applicant.
Legal Topics
['development Application' 'design Excellence' 'community Infrastructure' 'floor Space Ratio' 'building Height' 'overshadowing' 'penrith Local Environmental Plan' 'voluntary Planning Agreement (vpa)']
['planning and Environment Law'] ['development Application' 'design Excellence' 'community Infrastructure' 'floor Space Ratio' 'building Height' 'overshadowing' 'penrith Local Environmental Plan' 'voluntary Planning Agreement (vpa)']

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Procedural Posture

Appeal (class 1) Land and Environment Court / Final Judgment and Orders

Legal Issues

  1. 1 ['Whether the proposed development exhibits design excellence as required by cl 8.4 of the Penrith LEP' 'Whether the value and nature of community infrastructure provided satisfies the requirements of cl 8.7 of the Penrith LEP and the Community Infrastructure Policy' 'Whether an architectural design competition has been held in relation to the development as required' 'Whether the development is precluded by overshadowing public open space in contravention of cl 8.2 of the LEP' 'Whether the proposal exceeds development standards and if appropriate consent can be granted']

Ratio Decidendi

Consent was refused because the proposed development, within the Penrith City Centre, would result in overshadowing of public open space contrary to cl 8.2(3) of the LEP, and the proposal did not exhibit design excellence as required by cl 8.4, particularly due to the interface and design of podium parking and active streetscapes. Although an architectural design competition was found to be held in relation to the development, the jurisdictional requirements were not satisfied and consent could not be granted.

Court Disposition

Appeal dismissed; development application refused; costs thrown away on amendments ordered to be paid by applicant.

Orders

  • ["Applicant to pay the respondent's costs thrown away as a result of amendments made to the application as agreed or assessed under s 8.15 of the Environmental Planning and Assessment Act 1979." 'The appeal is dismissed.' 'Development Application DA20/0148 for the construction of a mixed use development with three...