Screnci & Anor v Willoughby City Council [2015] NSWLEC 1543

Screnci & Anor v Willoughby City Council [2015] NSWLEC 1543

The Court upheld the clause 4.6 request and granted consent because the altered subfloor area was within the existing building envelope, did not increase the building footprint, building envelope or built area, had no identified impact on neighbouring sites or the public domain in terms of views, privacy, overshadowing or visual intrusion, and the remaining structural and BCA concerns had been resolved by the issue of a building certificate. The resulting increase in floor space ratio was minor and did not warrant refusal.

Jurisdiction
Australia
Judgment Date
23 December 2015
Procedural Posture
Class 1 Appeal Against Refusal of a Development Application Relating to Internal Alterations of the Subfloor of a Dwelling / Consent Orders; Principal Judgment
Outcome
The clause 4.6 request was upheld, the appeal was upheld, and Development Application No.20141324 was approved subject to conditions.
Legal Topics
['internal Alterations of Subfloor' 'building Certificate' 'floor Space Ratio Development Standard' 'clause 4.6 Variation Request' 'willoughby Local Environmental Plan 2012']
['environmental Planning and Assessment' 'development Consent' 'land and Environment Court Class 1 Jurisdiction'] ['internal Alterations of Subfloor' 'building Certificate' 'floor Space Ratio Development Standard' 'clause 4.6 Variation Request' 'willoughby Local Environmental Plan 2012']

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Procedural Posture

Class 1 Appeal Against Refusal of a Development Application Relating to Internal Alterations of the Subfloor of a Dwelling / Consent Orders; Principal Judgment

Legal Issues

  1. 1 ["Whether the applicants' clause 4.6 request to vary the floor space ratio development standard in clause 4.4 of Willoughby Local Environmental Plan 2012 should be upheld." 'Whether development consent should be granted for the prospective use of the altered subfloor area providing a home theatre, powder room, pantry and corridor.' 'Whether the increase in gross floor area and floor space ratio from the subfloor alterations made the development unacceptable.']

Ratio Decidendi

The Court upheld the clause 4.6 request and granted consent because the altered subfloor area was within the existing building envelope, did not increase the building footprint, building envelope or built area, had no identified impact on neighbouring sites or the public domain in terms of views, privacy, overshadowing or visual intrusion, and the remaining structural and BCA concerns had been resolved by the issue of a building certificate. The resulting increase in floor space ratio was minor and did not warrant refusal.

Court Disposition

The clause 4.6 request was upheld, the appeal was upheld, and Development Application No.20141324 was approved subject to conditions.

Orders

  • ["The Applicants' request made pursuant to clause 4.6 of Willoughby Local Environmental Plan 2012 in respect to clause 4.4 of Willoughby Local Environmental Plan 2012 is upheld." 'The appeal is upheld.' 'Development Application No.20141324 lodged with the Respondent on 31 July 2014 for alterations of subfloor for...