Ceerose Pty Ltd v Inner West Council [2017] NSWLEC 1474

Land and Environment Court New South Wales

Medium Neutral Citation: Ceerose Pty Ltd v Inner West Council [2017] NSWLEC 1474 Hearing dates: 23 and 24 August 2017 Date of orders: 01 September 2017 Decision date: 01 September 2017 Jurisdiction: Class 1 Before: Dixon C Decision: 1. The appeal is dismissed. 2. Development application no D/2016/504 seeking approval of a four storey residential flat building - including penthouse at 173 Norton Street is refused consent. 3. The exhibits are returned apart from Exhibits A and 1. Catchwords: DEVELOPMENT APPLICATION - Mixed use development - compatibility with the desired future character of the area – non-compliance with the floor space ratio development standard – whether contravention of development standard justified Legislation Cited: Environmental Planning and Assessment Act 1979 Leichhardt Local Environmental Plan 2013 Leichhardt Development Control Plan 2013 Cases Cited: Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Four2Five Pty v Ashfield Council [2015] NSWLEC 1009 Texts Cited: Nil Category: Principal judgment Parties: Ceerose Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Counsel: T To (Applicant)

Solicitors: M Jaku, Jaku Legal (Applicant) M Bonanno, Inner West Council (Respondent) File Number(s): 2016/353072 Publication restriction: No

Judgment 1. The Inner West Council has granted development consent for a mixed use development over three storeys at 173-175 Norton Street, Leichhardt (the site) - which is under construction D/2014/717 (the original consent). Rather than lodge an application under s 96 of the Environmental Planning and Assessment Act 1979 ('EPA Act'), to amend the original consent the applicant has proceeded along the path of a new DA - D/2016/504 (new DA) - seeking consent for the approved development with an additional fourth floor containing a penthouse. 2. The Council has refused development consent to the new DA and the applicant has appealed that decision to the Court under s 97 of the EPA Act. As the construction works on the site are at a point where they can be completed under the original consent; or proceed in line with this DA, I must determine how the development will be completed. 3. In approving the original consent the Council allowed a development with a floor space ratio (FSR) of 1.69:1 - notwithstanding, the development standard in cl 4.4 of the Leichardt Local Environmental Plan 2013 ('LEP') provided an FSR of 1.0:1 for the site. As it happened the applicant was given the benefit of the bonus floor space allowance under cl 4.4A up to 1.5:1 - and some. The proposed development has an FSR of 1.96:1; and, again the approval is reliant upon the Court upholding the applicant's cl 4.6 written request to contravene the development standard in cl 4.4A of the LEP.