Torr & Torr Realty v Marrickville Council [2012] NSWLEC 1288

Torr & Torr Realty v Marrickville Council [2012] NSWLEC 1288

The appeal was upheld because the proposed development was permissible in the B1 Neighbourhood Centre zone, complied with the LEP 2011 height and FSR controls and the numerical standards in SEPP ARH, and the additional storey resulting from 2.4 m floor-to-ceiling heights did not materially undermine the desired future character, streetscape, context or scale. SEPP 65 did not strictly apply to the boarding house, although its principles were considered and satisfied. Solar access could not justify refusal because the applicable SEPP ARH solar access standard was met and prevailed over inconsistent DCP requirements.

Jurisdiction
Australia
Judgment Date
17 October 2012
Procedural Posture
Class 1 Development Application Appeal / Principal Judgment on Appeal Against Refusal of D/a No 201100625
Outcome
Appeal upheld; development application approved subject to conditions.
Legal Topics
['boarding House Development' 'building Height and Number of Storeys' 'desired Future Character' 'sepp 65 Applicability' 'solar Access' 'affordable Rental Housing']
['planning and Environment Law' 'development Consent'] ['boarding House Development' 'building Height and Number of Storeys' 'desired Future Character' 'sepp 65 Applicability' 'solar Access' 'affordable Rental Housing']

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Procedural Posture

Class 1 Development Application Appeal / Principal Judgment on Appeal Against Refusal of D/a No 201100625

Legal Issues

  1. 1 ['Whether the proposed boarding house development should be refused because of the number of storeys and its effect on context, scale, streetscape and desired future character.' 'Whether State Environmental Planning Policy No 65 applied to the proposed development or was a useful guide to assessment.' 'Whether solar access to the proposed development justified refusal having regard to State Environmental Planning Policy (Affordable Rental Housing) 2009 and the Marrickville Development Control Plan.' 'Whether internal amenity concerns for some boarding rooms were sufficient to warrant refusal.']

Ratio Decidendi

The appeal was upheld because the proposed development was permissible in the B1 Neighbourhood Centre zone, complied with the LEP 2011 height and FSR controls and the numerical standards in SEPP ARH, and the additional storey resulting from 2.4 m floor-to-ceiling heights did not materially undermine the desired future character, streetscape, context or scale. SEPP 65 did not strictly apply to the boarding house, although its principles were considered and satisfied. Solar access could not justify refusal because the applicable SEPP ARH solar access standard was met and prevailed over inconsistent DCP requirements.

Court Disposition

Appeal upheld; development application approved subject to conditions.

Orders

  • ['The appeal is upheld.' 'D/A No 201100625 for alterations and additions to an existing building to provide for an eight storey building development comprising 55 boarding rooms and a ground level retail/commercial tenancy and strata subdivision of retail space from boarding house at 244 – 244A Wardell Road,...