89 Ebley Street Pty Limited v Waverley Council [2021] NSWLEC 1365

89 Ebley Street Pty Limited v Waverley Council [2021] NSWLEC 1365

Because the parties reached agreement on orders and the Commissioner was satisfied that the relevant jurisdictional prerequisites were met, including permissibility with consent, consideration of zone objectives, non-application of the WLEP active frontage requirement to the Site, and satisfaction of SEPP 55 contamination requirements, the agreed decision was one the Court could have made in the proper exercise of its functions. The Court was therefore required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with the parties' decision.

Jurisdiction
Australia
Judgment Date
22 June 2021
Procedural Posture
Class 1 Development Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of Development Application DA 195/2020 / Conciliation Conference Under S 34 of the Land and Environment Court Act 1979; Final Orders
Outcome
Appeal upheld; Development Application DA-195/2020, as amended, approved subject to conditions.
Legal Topics
['development Appeal' 'change of Use' 'development Consent' 'conciliation Conference' 'agreement Between the Parties' 'jurisdictional Prerequisites' 'permissibility' 'active Frontages' 'contamination and Remediation']
['planning and Environment Law'] ['development Appeal' 'change of Use' 'development Consent' 'conciliation Conference' 'agreement Between the Parties' 'jurisdictional Prerequisites' 'permissibility' 'active Frontages' 'contamination and Remediation']

Case Brief

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Procedural Posture

Class 1 Development Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of Development Application DA 195/2020 / Conciliation Conference Under S 34 of the Land and Environment Court Act 1979; Final Orders

Legal Issues

  1. 1 ["Whether the parties' agreed decision was one the Court could have made in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979." 'Whether the proposed development was permissible with consent on land zoned B4 Mixed Use under the Waverley Local Environmental Plan 2012.' 'Whether cl 6.5 of the Waverley Local Environmental Plan 2012 concerning active frontages applied to the Site.' 'Whether cl 7 of State Environmental Planning Policy No 55—Remediation of Land was satisfied.']

Ratio Decidendi

Because the parties reached agreement on orders and the Commissioner was satisfied that the relevant jurisdictional prerequisites were met, including permissibility with consent, consideration of zone objectives, non-application of the WLEP active frontage requirement to the Site, and satisfaction of SEPP 55 contamination requirements, the agreed decision was one the Court could have made in the proper exercise of its functions. The Court was therefore required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with the parties' decision.

Court Disposition

Appeal upheld; Development Application DA-195/2020, as amended, approved subject to conditions.

Orders

  • ['The Applicant is granted leave to rely on the amended Architectural Plans, Plan Nos DA00 (Issue P2), DA010 (Issue P3), DA101 (Issue P3), DA201 (Issue P3), DA 301 (Issue P3) prepared by Squillace Architects dated 27 May 2021 and annexed at Annexure A.' 'The Applicant is granted leave to rely on the revised Plan of...