El Khouri & Anor v Gemaveld Pty Ltd & Ors [2023] NSWSC 25

El Khouri & Anor v Gemaveld Pty Ltd & Ors [2023] NSWSC 25

The proposed dwelling house exceeds the maximum building height shown for the site under clause 4.3(2) of the Kogarah LEP, but this breach did not appear from the plans submitted to the consent authority. Applicants did not excavate the relevant area prior to 7 April 2022; notification and procedural fairness issues do not arise due to applicants withdrawing those grounds.

Jurisdiction
Australia
Judgment Date
02 February 2023
Procedural Posture
Judicial Review / Determination of Remitted Questions of Fact in Equity Division Following Referral
Outcome
Questions remitted answered: (1) Yes, but not apparent from plans; (2) No; (3) Unnecessary to answer; (4) Does not arise.
Legal Topics
['building Height Standards' 'development Consent' 'jurisdictional Error' 'procedural Fairness' 'notification Requirements']
['environment and Planning' 'equity'] ['building Height Standards' 'development Consent' 'jurisdictional Error' 'procedural Fairness' 'notification Requirements']

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Procedural Posture

Judicial Review / Determination of Remitted Questions of Fact in Equity Division Following Referral

Legal Issues

  1. 1 ['Whether the proposed dwelling house exceeds the maximum building height under Kogarah LEP' 'Whether the applicants excavated the site relevant to the breach' 'Whether notice was forwarded in accordance with the Community Engagement Strategy' 'If procedural fairness was denied, whether it was material']

Ratio Decidendi

The proposed dwelling house exceeds the maximum building height shown for the site under clause 4.3(2) of the Kogarah LEP, but this breach did not appear from the plans submitted to the consent authority. Applicants did not excavate the relevant area prior to 7 April 2022; notification and procedural fairness issues do not arise due to applicants withdrawing those grounds.

Court Disposition

Questions remitted answered: (1) Yes, but not apparent from plans; (2) No; (3) Unnecessary to answer; (4) Does not arise.

Orders

  • ['Question 1 answered: Yes, but this did not appear from the plans submitted to the consent authority.' 'Question 2 answered: No.' 'Question 3 answered: Unnecessary to answer.' 'Question 4 answered: Does not arise.']