Sung v City of Canada Bay Council [2023] NSWLEC 1087

Sung v City of Canada Bay Council [2023] NSWLEC 1087

A clause 4.6 request is required for a breach of the height development standard as SEPP ARH and CBLEP are not inconsistent; the written request sufficiently addresses environmental planning grounds, and the objectives of the height standard are achieved by the pitched roof, which is consistent with local character....

Source-derived case information.

Parties
Applicant: Yeoun II Sung; Respondent: City of Canada Bay Council
Jurisdiction
Australia
Judgment Date
01 March 2023
Procedural Posture
Appeal / Final Orders
Outcome
Appeal upheld; development application granted
Legal Topics
Development Application, Boarding House, Height Development Standard, Floor Space Ratio, Local and State Environmental Planning Instruments, Design Compatibility, Amenity, Acoustic and Visual Privacy, Solar Access
Planning and Environment Development Application Boarding House Height Development Standard Floor Space Ratio Local and State Environmental Planning Instruments Design Compatibility Amenity +2 more

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Summary, issues, holding and outcome

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Parties

Yeoun II Sung

Applicant

City of Canada Bay Council

Respondent

Procedural Posture

Appeal / Final Orders

Legal Issues

  1. 1 Whether a clause 4.6 request is required for breach of height development standard
  2. 2 Whether local environmental plan is inconsistent with the state environmental planning policy
  3. 3 Whether the proposed development complies with the permitted floor space ratio

Ratio Decidendi

A clause 4.6 request is required for a breach of the height development standard as SEPP ARH and CBLEP are not inconsistent; the written request sufficiently addresses environmental planning grounds, and the objectives of the height standard are achieved by the pitched roof, which is consistent with local character. The proposed development complies with the permitted floor space ratio, meets 'must not refuse' statutory criteria, and is compatible with the character of the local area. The boarding rooms have adequate amenity and none of the Council's contentions warrant refusal. Development consent is to be granted with appropriate conditions.

Court Disposition

Appeal upheld; development application granted

Orders

  • The appeal is upheld.
  • The development application (DA 2021/0179) for demolition of the existing dwelling house and construction of an 18 room boarding house (including manager's room) at 2 Swan Avenue, Strathfield is granted consent subject to conditions in Annexure A.