Arrage v Inner West Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Arrage v Inner West Council [2018] NSWLEC 1628

Hearing dates:

8 November 2018

Date of orders:

07 December 2018

Decision date:

07 December 2018

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The orders of the Court are:

 

(1) The appeal is dismissed.

(2) The application to modify the development consent granted by the Court for DA201500129, is determined by refusal.

 (3) The exhibits are returned, with the exception of Exhibits A and 1.

Catchwords:

MODIFICATION APPLICATION: whether modification is substantially the same.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Marrickville Local Environment Plan 2009
State Environmental Planning Policy no. 65 – Design Quality of Residential Apartment Development

Cases Cited:

Moto Projects No 2 Pty Limited v North Sydney Council [1999] 106 LGERA 298
North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468
Trinvass Pty Ltd V The Council of the City of Sydney [2018] NSWLEC 77
Vacik Pty Ltd v Penrith City Council, unreported

Texts Cited:

Apartment Design Guide, NSW Department of Planning and Environment, 2015
Marrickville Development Control Plan 2012

Category:

Principal judgment

Parties:

Michael Abou Arrage (Applicant)
Inner West City Council (Respondent)

Representation:

Counsel:
A Hemmings (Applicant)

  Solicitors:
Harrington Lawyers (Applicant)
S Turner with M Bonanno, Inner West Council (Respondent)

File Number(s):

2017/364602

Publication restriction:

Nil

Judgment

1. COMMISSIONER: Michael Abou Arrage (the Applicant) has appealed the refusal by Inner West Council (the Respondent) of his application to modify a development consent granted by the Court on 1 April 2015 for DA201500129. That consent had been granted pursuant to s 34(3) of the LEC Act after an agreement was reached between the Parties at a conciliation conference held pursuant to s 34 of the LEC Act.

2. The modification application was made subject to s 4.55(2) (formerly s 96(2) of the Environmental Planning and Assessment Act 1979 (EPA Act), and the appeal is made pursuant to s 8.9 of the (EP&A Act).

3. The proposed development is located 62 Constitution Rd, Dulwich Hill (the Subject Site), which is also bounded by Grove St and the GreenWay corridor including the Sydney light rail. The light rail’s Arlington stop is located a short distance from the Subject Site.

4. On 31 August 2018 the Applicant was granted leave to rely on amended plans that now form the basis of this appeal. Those plans propose the following modifications to the previously approved development on the Subject Site:

1. modification of the approved fifth floor communal open space to provide three additional dwellings;

2. the addition of one level (a sixth storey) containing:

1. a two bedroom dwelling; and

2. communal open space, comprising seating, landscaping and BBQ;

3. modification to the lower ground floor residential bin store room.

5. The Subject Site is zoned B4 Mixed Use Development, and is an isolated triangular site surrounded by land zoned:

1. R1 General Residential to its north eastern boundary;

2. R4 High Density Residential to its southern boundary;

3. SP2 to its western…