Malass v Strathfield Municipal Council [2022] NSWLEC 1160

Land and Environment Court New South Wales

Medium Neutral Citation: Malass v Strathfield Municipal Council [2022] NSWLEC 1160 Hearing dates: 10 November 2021; 16-17 & 22 December 2021 Date of orders: 12 May 2022 Decision date: 12 May 2022 Jurisdiction: Class 1 Before: Dixon SC Decision: Proceedings 2021/69569 The Court orders: (1) The applicant is to pay the respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed, in respect of the amendments made on 9 November 2021, 16 and 17 December 2021. (2) The clause 4.6 written request prepared by SJB Planning and dated 17 December 2021 to vary the exceptions to floor space ratio (Zone R2) development standard in cl 4.4C of the Strathfield Local Environmental Plan 2012 is not approved. (3) The appeal is dismissed. (4) Development consent for development application no. 2020.239 for the prospective use of the land for the purposes of a dwelling house, including the use of the building and structures erected on the land and additions and alterations to modify an approved dwelling including remedial works at 27 Boden Avenue, Strathfield is refused. (5) The exhibits are returned, except for A, J, K, L, N, O, P, BA, 1, 7, 18 and 22. Proceedings 2021/69575 The Court orders: (1) The appeal is dismissed. (2) Building information certificate application no. 2020/022 in relation to certain works that had been undertaken on land known as 27 Boden Avenue, Strathfield which were not in accordance with the existing development consent is refused. (3) The exhibits are returned, except for A, J, K, L, N, O, P, BA, 1, 7, 18 and 22. Proceedings 2020/291053 The Court orders: (1) The appeal is dismissed. (2) The stop work order issued by Strathfield Municipal Council under s 9.34 and Sch 5 to the Environmental Planning and Assessment Act 1979 to the applicant on 14 September 2020 will remain in force until a construction certificate is issued by Strathfield Municipal Council. (3) The exhibits are returned, except for A, J, K, L, N, O, P, BA, 1, 7, 18 and 22 Catchwords: DEVELOPMENT APPLICATION – prospective use of the site for the purposes of a dwelling house, including the use of the building and structures erected on the land and alterations and additions to modify the approved dwelling including remedial works – significant departure from floor space ratio development standard – correct calculation of FSR and gross floor area – amended cl 4.6 written request to vary the floor space ratio (FSR) development standard BUILDING INFORMATION CERTIFICATE – application to retain 'unauthorised' works undertaken not in accordance with existing development consent – final outcome dependent on the outcome of the development application appeal – appeal dismissed DEVELOPMENT CONTROL ORDER – stop work order made pursuant to s 9.34 and Sch 5 to the Environmental Planning and Assessment Act 1979 – final outcome dependent on the outcome of the development application appeal – appeal dismissed – stop work order will continue to remain in force until a construction certificate is issued Legislation Cited: Environmental Planning and Assessment Act 1979, ss 8.7, 8.18, 8.25 Standard Instrument—Principal Local Environmental Plan Strathfield Local Environmental Plan 2012, cll 1.2, 2.3, 4.3, 4.4, 4.4C, 4.5, 4.6 Cases Cited: Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWCA 177; (2021) 248 LGERA 300 Malass v Strathfield Municipal Council [2020] NSWLEC 168 RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 Texts Cited: AS2890.1:2004 Parking facilities – Part 1: Off-street car parking Building Code of Australia National Construction Code Strathfield Consolidated Development Control Plan 2005 Category: Principal judgment Parties: Sarah Malass (Applicant) Strathfield Municipal Council (Respondent) Representation: Counsel: R White (Applicant) G Farland (Respondent)