Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 1017

Land and Environment Court New South Wales

Medium Neutral Citation: Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 1017 Hearing dates: 3, 6-8 December 2021 Date of orders: 14 January 2022 Decision date: 14 January 2022 Jurisdiction: Class 1 Before: Morris AC Decision: The orders of the Court are: (1) The applicant is to pay the respondent's costs thrown away as a result of the amendments made to the application as agreed or assessed pursuant to the provisions of s 8.15 of the Environmental Planning and Assessment Act 1979. (2) The appeal is dismissed. (3) Development Application DA20/0148 for the construction of a mixed use development with three level basement car park at Lot 300 in DP 1243401 and known as 634-638 High Street and 87-93 Union Road, Penrith is refused. (4) The exhibits, other that exhibits F and 1, are returned. Catchwords: DEVELOPMENT APPLICATION – mixed use development – incentive clause to provide additional floor space – whether a design competition has been held in relation to the development -whether value of community infrastructure is sufficient – whether development exhibits design excellence – whether clause 8.2 of Penrith Local Environmental Plan applies to the development Legislation Cited: Environmental Planning and Assessment Act 1979 ss 8.7, 8.15 Penrith Local Environmental Plan 2010 cll 2.3(2), 2.7, 4.3, 4.4, 4.5, 7.1, 7.4, 7.5, 7.7, 7.8, 8.2, 8.3, 8.4, 8.7 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Infrastructure) 2007 cl 104 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development Cases Cited: CC Builders (NSW) Pty Ltd v Georges River Council [2017] NSWLEC 1064 Texts Cited: Penrith City Council, Community Infrastructure Policy, (April 2018) Penrith Development Control Plan 2014 Apartment Design Guide Director General's Design Excellence Guidelines Category: Principal judgment Parties: Toga Penrith Developments Pty Limited (Applicant) Penrith City Council (Respondent) Representation: Counsel: R Lancaster SC (Applicant) J Lazarus SC (Respondent)