Australian Village No. 12 – Gladstone St Pty Ltd v Inner West Council [2021] NSWLEC 1080

Land and Environment Court New South Wales

Medium Neutral Citation: Australian Village No. 12 – Gladstone St Pty Ltd v Inner West Council [2021] NSWLEC 1080 Hearing dates: 17 December 2020 Date of orders: 18 February 2021 Decision date: 18 February 2021 Jurisdiction: Class 1 Before: Clay AC Decision: The Court orders that: (1) The appeal be dismissed. (2) Development application number DA/2020/0366 for development comprising the change of use of level 1 and minor alterations to the development approved by the development consent granted by the Court on 8 April 2020 to development application DA/2019/00242 (for demolition of existing buildings and construction of a mixed use development comprising ground and first floor level creative use commercial tenancies and 21 community housing dwellings and external open space with associated basement parking) at Lots 1 and 2 in Deposited Plan 208950 and Lots 1, 2 and 3 in Deposited Plan 6051 known as 2-2A Gladstone Street, Newtown is determined by refusal. (3) The exhibits, other than Exhibits A and 1 shall be returned. Catchwords: DEVELOPMENT APPLICATION – change of use from commercial to residential – proper characterisation of development application – whether provision in local environmental plan requiring 60% commercial floor space a prohibition or development standard – clause 4.6 objection – whether compliance is unreasonable or unnecessary – whether in the public interest Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Marrickville Local Environmental Plan 2011 State Environmental Planning Policy No 1—Development Standards State Environmental Planning Policy—Affordable Rental Housing 2009 Cases Cited: Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780. Initial Action Pty Ltd v Woollahra Municipal Council (2008) 236 LGERA 256; [2018] NSWLEC 118 Laurence Browning Pty Ltd v Blue Mountains City Council [2006] NSWLEC 74 Principal Healthcare Finance Pty Ltd v Ryde City Council (2016) 222 LGERA 212; [2016] NSWLEC 153 Rebel MH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; [2001] NSWCA 270 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Texts Cited: Marrickville Development Control Plan 2011 Category: Principal judgment Parties: Australian Village No. 12 – Gladstone St Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Counsel: C McEwen SC (Applicant) J Johnson (Respondent)