Christou v Wollongong City Council [2024] NSWLEC 1018

Christou v Wollongong City Council [2024] NSWLEC 1018

The cl 4.6 written request did not adequately demonstrate that compliance with the floor space ratio development standard in cl 4.4 of Wollongong Local Environmental Plan 2009 was unreasonable or unnecessary, nor did it demonstrate sufficient environmental planning grounds to justify the contravention. Because the...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
24 January 2024
Procedural Posture
Class 1 Appeals Against Refusal of a Development Application and Deemed Refusal of a Building Information Certificate Application / Determination After Hearing
Outcome
Both appeals were dismissed. Development application DA-2021/1316 was determined by refusal of consent, and building information certificate application no. BIC-2022/55 was refused.
Legal Topics
['floor Space Ratio Development Standard' 'clause 4.6 Variation Request' 'warehouse and Storage Use' 'unauthorised Industrial Building' 'flooding' 'parking' 'landscaping']
['environmental Planning and Assessment' 'development Consent' 'building Information Certificates'] ['floor Space Ratio Development Standard' 'clause 4.6 Variation Request' 'warehouse and Storage Use' 'unauthorised Industrial Building' 'flooding' 'parking' 'landscaping']

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Procedural Posture

Class 1 Appeals Against Refusal of a Development Application and Deemed Refusal of a Building Information Certificate Application / Determination After Hearing

Legal Issues

  1. 1 ["Whether the applicant's written request under cl 4.6 of Wollongong Local Environmental Plan 2009 adequately demonstrated that compliance with the floor space ratio development standard was unreasonable or unnecessary." "Whether the applicant's written request under cl 4.6 of Wollongong Local Environmental Plan 2009 adequately demonstrated sufficient environmental planning grounds to justify contravening the floor space ratio development standard." 'Whether the Court had jurisdiction to grant development consent despite contravention of the floor space ratio development standard in cl 4.4 of Wollongong Local Environmental Plan 2009.' 'Whether the Court should direct the Council to issue a building information certificate for the unauthorised warehouse structure.']

Ratio Decidendi

The cl 4.6 written request did not adequately demonstrate that compliance with the floor space ratio development standard in cl 4.4 of Wollongong Local Environmental Plan 2009 was unreasonable or unnecessary, nor did it demonstrate sufficient environmental planning grounds to justify the contravention. Because the Court was not satisfied of the matters required by cl 4.6(3) and cl 4.6(4)(a), the permissive power in cl 4.6(2) was not available and there was no jurisdiction to grant development consent. Given the development application failed and the building information certificate appeal was linked to it, there was no cause to direct the Council to issue the certificate.

Court Disposition

Both appeals were dismissed. Development application DA-2021/1316 was determined by refusal of consent, and building information certificate application no. BIC-2022/55 was refused.

Orders

  • ['Proceedings 2022/358734: The appeal is dismissed.' 'Proceedings 2022/358734: Development application DA-2021/1316 for minor alterations and prospective use of part of an existing industrial building for storage purposes, and associated development at Lots 1, 2, 3 and 4 in SP 37585 (No. 47) Montague Street is...