Zhu v Inner West Council [2023] NSWLEC 1488

Zhu v Inner West Council [2023] NSWLEC 1488

The amended development application was acceptable because Part 3.2.2 of the Marrickville Development Control Plan 2011 was a useful guide but had to be applied flexibly and in conjunction with the Inner West Local Environmental Plan 2022 and other controls. The suitability of the proposed Torrens title subdivision could not reasonably be assessed in isolation from the proposed built form. Considering the subdivision together with the amended semi-detached dwelling design, the proposal was consistent with relevant aims and zone objectives, complied with the height and floor space ratio standards, resolved the other planning contentions, maintained an acceptable streetscape presentation...

Jurisdiction
Australia
Judgment Date
29 August 2023
Procedural Posture
Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application DA 2022/0721 / Principal Judgment After Conciliation Conference and Hearing; Directions Made Before Final Orders
Outcome
Directions made; the Court indicated it would uphold the appeal and grant consent to the amended development application subject to appropriate conditions, with final orders deferred pending amended documents.
Legal Topics
['development Application Refusal Appeal' 'semi Detached Dwelling Houses' 'torrens Title Subdivision' 'development Control Plan Flexibility' 'lot Size and Configuration' 'built Form Impacts' 'basix Certificate' 'conditions of Consent']
['planning and Environment Law' 'development Consent' 'subdivision'] ['development Application Refusal Appeal' 'semi Detached Dwelling Houses' 'torrens Title Subdivision' 'development Control Plan Flexibility' 'lot Size and Configuration' 'built Form Impacts' 'basix Certificate' 'conditions of Consent']

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Procedural Posture

Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application DA 2022/0721 / Principal Judgment After Conciliation Conference and Hearing; Directions Made Before Final Orders

Legal Issues

  1. 1 ['Whether the proposed Torrens title subdivision creating two allotments was appropriate having regard to the prevailing cadastral pattern and Part 3.2.2 of the Marrickville Development Control Plan 2011.' 'Whether the amended development application should be assessed flexibly and holistically by considering the proposed subdivision together with the proposed built form and the relevant provisions of the Inner West Local Environmental Plan 2022 and Marrickville Development Control Plan 2011.' 'Whether the amended development application was acceptable in relation to bulk and scale, overshadowing, visual privacy, car parking and public interest contentions.']

Ratio Decidendi

The amended development application was acceptable because Part 3.2.2 of the Marrickville Development Control Plan 2011 was a useful guide but had to be applied flexibly and in conjunction with the Inner West Local Environmental Plan 2022 and other controls. The suitability of the proposed Torrens title subdivision could not reasonably be assessed in isolation from the proposed built form. Considering the subdivision together with the amended semi-detached dwelling design, the proposal was consistent with relevant aims and zone objectives, complied with the height and floor space ratio standards, resolved the other planning contentions, maintained an acceptable streetscape presentation...

Court Disposition

Directions made; the Court indicated it would uphold the appeal and grant consent to the amended development application subject to appropriate conditions, with final orders deferred pending amended documents.

Orders

  • ['The Applicant is to prepare and file with the Court an amended BASIX certificate, reflecting the final amended Development Application (DA) as described in the Issue E plans tendered as Exhibit R, within 7 days.' "The Respondent is then to amend Condition 1 of the draft conditions of consent tendered as Exhibit 6...