Lahoud v Willoughby City Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lahoud v Willoughby City Council [2023] NSWLEC 117

Hearing dates:

1, 2, 3 and 4 November 2022; written submissions on 23 December 2022 and final written submissions by 23 June 2023

Date of orders:

02 November 2023

Decision date:

02 November 2023

Jurisdiction:

Class 4

Before:

Moore J

Decision:

See orders at [327]

Catchwords:

JUDICIAL REVIEW ‑ challenge to development consent for adaptive reuse of an existing commercial building, adding an additional level ‑ conversion to mixed‑use development with shop top housing ‑ development consent challenged on six separate grounds ‑ whether challenge to development consent commenced within statutory time limit ‑ challenge commenced within time limit ‑ if not within in time limit, whether challenge within Hickman principles of exceptions to compliance with time limits ‑ challenge within second of the Hickman principles

JUDICIAL REVIEW ‑ Ground 1 ‑ ground alleges approved development breaches height of building development standard set by Willoughby Local Environmental Plan 2012 (the LEP) ‑ request pursuant to cl 4.6 of the LEP to permit non‑compliance with the development standard ‑ Planning Panel approved request to permit non‑compliance but on the basis that required modification of the development for which consent had been sought ‑ three tests in cl 4.6 of the LEP required to be applied to the proposed development for which application had been made ‑ Planning Panel did not misapply the tests in cl 4.6 of the LEP ‑ granting of dispensation for non‑compliance of the Height of Building Development Standard valid ‑ Ground 1 fails

JUDICIAL REVIEW ‑ Ground 2 ‑ LEP requires that the western street frontage of the site be activated ‑ majority of the western street frontage proposed to be screening of ground level car parking ‑ consideration of extent to which activated street frontage required ‑ consideration of whether requirement for activated street frontage is a development standard ‑ held requirement for activated Street frontage is a development standard amenable to a dispensation request pursuant to cl 4.6 of the LEP ‑ no dispensation request made with the development application ‑ without a dispensation request satisfying cl 4.6 of the LEP, failure to satisfy the requirement for an activated street frontage on the western boundary of the site rendered development prohibited ‑ Planning Panel failed to give proper consideration to requirement for activated street frontage on western boundary of the site – consideration of matters of discretion - ground 2 upheld but, as a matter of discretion, relief refused

JUDICIAL REVIEW ‑ Ground 3 ‑ ground proposes shop top housing must be directly vertically above ground floor commercial premises ‑ all dwellings above ground floor commercial premises ‑ proposed dwellings not all directly vertically above ground floor commercial premises ‑ definition of shop top housing does not require vertical alignment above ground floor commercial premises ‑ Ground 3 fails

JUDICIAL REVIEW ‑ Ground 4 ‑ ground alleges breach of floor space ratio (FSR) permitted by development standard…