Micro Nest No 1 Pty Ltd on behalf of Micro Nest Ashfield Trust v Inner West Council [2019] NSWLEC 1320

Land and Environment Court New South Wales

Medium Neutral Citation: Micro Nest No 1 Pty Ltd on behalf of Micro Nest Ashfield Trust v Inner West Council [2019] NSWLEC 1320 Hearing dates: 8 May 2019 Date of orders: 09 July 2019 Decision date: 09 July 2019 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The application to modify the development consent for the construction of a boarding house at 33 Chandos Street, Ashfield (granted by the Land and Environment Court on 16 March 2018 in proceedings 2017/272007), by amending conditions A(1) and H(1)(f) and deleting condition G(16), is granted. (2) The development consent referred to in order (1), for the demolition of existing structures and the construction of a three-storey boarding house with attic accommodation comprising 28 boarding rooms and one manager's room at 33 Chandos Street, Ashfield, is now subject to the modified conditions of consent contained in Annexure A. (3) The exhibits are returned, except for Exhibits A, B and C. Catchwords: ENVIRONMENT AND PLANNING – consent - boarding house – modification application – power to grant modification – change in occupancy numbers – whether a correction of a minor error, misdescription or miscalculation – removal of a condition requiring a covenant limiting occupants by their income and limiting rent to be charged – whether removal of condition results in substantially the same development – whether condition required to be imposed by the State Environmental Planning Policy (Affordable Rental Housing) 2009 - whether removal will have adverse impact on access to affordable housing – whether removal will reduce social inclusion – whether there is an impact on car parking Legislation Cited: Ashfield Local Environmental Plan 2013 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 Cases Cited: Chandos House Pty Ltd v Inner West Council [2018] NSWLEC 1136 Dragoneye Properties Pty Ltd v Northern Beaches Council [2016] NSWLEC 1555 Doran Developments Pty Ltd v Newcastle City Council (1984) 13 APAD 436 Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Lizard Apple Pty Ltd v Inner West Council [2019] NSWLEC 1146 Minister For Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 Pomering v Hawkesbury City Council [2018] NSWLEC 1146 Scrap Realty Pty Ltd v Botany Bay City Council [2008] NSWLEC 333; (2008) 166 LGERA 342 Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414 Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 Texts Cited: Ashfield Interim Development Assessment Policy 2013 Comprehensive Inner West Development Control Plan 2016 G Drake, H Blunden, K Newton and E Lentini, Boarding Houses Act 2012 Evaluation Report (29 September 2014) UNSW City Futures Research Centre, State Environmental Planning Policy (Affordable Rental Housing) 2009 and affordable housing in Central and Southern Sydney (June 2018) Category: Principal judgment Parties: Micro Nest No 1 Pty Ltd on behalf of Micro Nest Ashfield Trust (Applicant) Inner West Council (Respondent) Representation: Counsel: J Smith (Applicant)