Lo Brothers Company Pty Limited v Inner West Council (No 2) [2022] NSWLEC 1114

Land and Environment Court New South Wales

Medium Neutral Citation: Lo Brothers Company Pty Limited v Inner West Council (No 2) [2022] NSWLEC 1114 Hearing dates: 16-17 December 2021 Date of orders: 7 March 2022 Decision date: 07 March 2022 Jurisdiction: Class 1 Before: Walsh C Decision: The Court orders: 1) The request pursuant to clause 4.6 of Ashfield Local Environmental Plan 2013 to vary the development standard for Height of Buildings contained in clause 4.3 thereof, prepared by ABC Planning Pty Ltd dated December 2021 is upheld. 2) The appeal is upheld. 3) Development Application No. DA20210182, as amended, to demolish the existing improvements and erect a three-storey mixed use development containing a ground floor retail tenancy, car parking spaces and loading bay and 8 residential units above is approved subject to the conditions in Annexure A. Catchwords: DEVELOPMENT APPLICATION – mixed use development – amendment of application – characterisation of use as shop top housing – flooding – contravention of height of building control – reliability of parking stacker Legislation Cited: Ashfield Local Environmental Plan 2013, cll 4.3, 4.6, 5.10, 5.21 Environmental Planning and Assessment Act 1979, ss 4.15, 8.7 Environmental Planning and Assessment Regulation 2000, cll, 50, 55 Land and Environment Court Act 1979, s 39 State Environmental Planning Policy No 55—Remediation of Land, cl 7 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cll 4, 5, 28 Cases Cited: Arco Iris Trading Pty Ltd v North Sydney Council [2015] NSWLEC 1113 Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 Hrsto v Canterbury City Council (No 2) (2014) 204 LGERA 148; [2014] NSWLEC 121 Lo Brothers Company Pty Limited v Inner West Council [2022] NSWLEC 1094 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Texts Cited: Apartment Design Guide Inner West Development Control Plan 2016 Macquarie Dictionary Category: Principal judgment Parties: Lo Brothers Company Pty Limited (Applicant) Inner West Council (Respondent) Representation: Counsel: R O'Gorman-Hughes (Applicant) S Berveling (Respondent)