Capital Developments Pty Ltd v Auburn City Council [2013] NSWLEC 1040

Land and Environment Court New South Wales

Medium Neutral Citation: Capital Developments Pty Ltd v Auburn City Council [2013] NSWLEC 1040 Hearing dates: 28 February & 1 March 2012 Decision date: 08 March 2013 Jurisdiction: Class 1 Before: Morris C Decision: Appeal dismissed Catchwords: Development Application: infill affordable housing; whether the design of the development is compatible with the character of the local area; SEPP65; solar access; setbacks; streetscape Legislation Cited: Auburn Local Environmental Plan 2010; Environmental Planning and Assessment Act 1979; State Environmental Planning Policy (Affordable Rental Housing) 2009; State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development; Cases Cited: Project Venture Developments v Pittwater Council [2005] NSWLEC191 Texts Cited: Auburn Development Control Plan 2010; Residential Flat Design Code Category: Principal judgment Parties: Capital Developments Pty Ltd (Applicant)

Auburn City Council (Respondent) Representation: Counsel Mr M Staunton (Applicant)

Mr I Hemmings (Respondent) Solicitors Mr A Whealy Gadens Lawyers (Applicant)

Mr T Flaherty Wilshire Webb Staunton Beattie (Respondent) File Number(s): 11169 of 2012

Judgment 1Capital Developments obtained consent (DA-279/2003) from Auburn Council on 1 December 2004 for demolition of buildings and construction of a 4 storey building comprising 3 office tenancies at ground floor level, 3 storeys of residential units above with basement carpark and strata subdivision of the building. That consent applied to land known as 22 Northumberland Road, Auburn and has been modified on a number of occasions and has commenced for the purposes of Section 95(4) of the Environmental Planning and Assessment Act 1979 (EPA Act). 2Capital lodged DA-29/2012 with the council on 2 February 2012 seeking consent for alterations and additions to the mixed use building approved under the consent to DA-279/2003 to include three additional floors under State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPPARH), inclusion of an additional basement parking level and strata subdivision of the additional building works. The council refused consent and Capital is appealing that decision.