200 Marion Properties Pty Ltd v Inner West Council [2022] NSWLEC 1440

200 Marion Properties Pty Ltd v Inner West Council [2022] NSWLEC 1440

The Court upheld the appeal and granted development consent because the parties reached an agreement under s 34(3) of the Land and Environment Court Act 1979, and the Commissioner was satisfied that granting consent to the amended development application subject to conditions was a decision the Court could make in the proper exercise of its functions, with the identified jurisdictional prerequisites met.

Jurisdiction
Australia
Judgment Date
23 August 2022
Procedural Posture
Class 1 Appeal Concerning Refusal of a Development Application / Orders Made Following a Conciliation Conference and Agreement Under S 34(3) of the Land and Environment Court Act 1979
Outcome
Appeal upheld; development consent granted subject to conditions; Applicant to pay Respondent's costs thrown away by the amendment of the development application in a sum to be agreed or assessed.
Legal Topics
['development Application' 'mixed Use Development' 'development Consent' 'conciliation Conference' 'floor Space Ratio Variation' 'jurisdictional Prerequisites']
['planning and Environment Law'] ['development Application' 'mixed Use Development' 'development Consent' 'conciliation Conference' 'floor Space Ratio Variation' 'jurisdictional Prerequisites']

Case Brief

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Procedural Posture

Class 1 Appeal Concerning Refusal of a Development Application / Orders Made Following a Conciliation Conference and Agreement Under S 34(3) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether the Court could grant development consent to the amended development application in the proper exercise of its functions following an agreement between the parties under s 34(3) of the Land and Environment Court Act 1979.' 'Whether the jurisdictional prerequisites to grant development consent were satisfied, including permissibility in the B2 Local Centre zone, applicable floor space ratio controls, the cl 4.6 variation request, applicable State environmental planning policies, BASIX requirements and design verification requirements.']

Ratio Decidendi

The Court upheld the appeal and granted development consent because the parties reached an agreement under s 34(3) of the Land and Environment Court Act 1979, and the Commissioner was satisfied that granting consent to the amended development application subject to conditions was a decision the Court could make in the proper exercise of its functions, with the identified jurisdictional prerequisites met.

Court Disposition

Appeal upheld; development consent granted subject to conditions; Applicant to pay Respondent's costs thrown away by the amendment of the development application in a sum to be agreed or assessed.

Orders

  • ['The appeal is upheld.' 'Development Consent is granted to Development Application DA/2021/0110 for the demolition of all existing structures and redevelopment of the site to contain a three (3) storey mixed use development with basement and lower ground parking, retail shops and 17 apartments, landscaping and...