A & A Development Pty Ltd v Cumberland Council [2022] NSWLEC 1071

A & A Development Pty Ltd v Cumberland Council [2022] NSWLEC 1071

Because the Commissioner was satisfied that the amended development application was supported by owner consent, relevant environmental planning instruments had been considered, the proposed retail premises and shop top housing were permissible in the B4 Mixed Use zone, the clause 4.6 requests for height and floor space ratio variations satisfied the requirements of the Auburn Local Environmental Plan 2010, essential services were available or could be made available, and the parties had reached a s 34 agreement, the Court could properly uphold the appeal and grant development consent subject to conditions.

Jurisdiction
Australia
Judgment Date
11 February 2022
Procedural Posture
Class 1 Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Section 34 Conciliation Conference Agreement and Final Orders
Outcome
Appeal upheld; development consent granted subject to conditions.
Legal Topics
['development Application for Shop Top Housing' 'clause 4.6 Variation Requests' 'building Height Development Standard' 'floor Space Ratio Development Standard' 'section 34 Conciliation Agreement' 'state Environmental Planning Policies']
['planning and Environment Law' 'development Consent'] ['development Application for Shop Top Housing' 'clause 4.6 Variation Requests' 'building Height Development Standard' 'floor Space Ratio Development Standard' 'section 34 Conciliation Agreement' 'state Environmental Planning Policies']

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Procedural Posture

Class 1 Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Section 34 Conciliation Conference Agreement and Final Orders

Legal Issues

  1. 1 ["Whether the Court could make orders giving effect to the parties' agreement under s 34(3) of the Land and Environment Court Act 1979." 'Whether written requests under clause 4.6 of the Auburn Local Environmental Plan 2010 justified contravention of the height of buildings and floor space ratio development standards.' 'Whether consent should be granted to the amended development application for demolition, lot consolidation and construction of shop top housing at 22-24 Park Road, Auburn subject to conditions.']

Ratio Decidendi

Because the Commissioner was satisfied that the amended development application was supported by owner consent, relevant environmental planning instruments had been considered, the proposed retail premises and shop top housing were permissible in the B4 Mixed Use zone, the clause 4.6 requests for height and floor space ratio variations satisfied the requirements of the Auburn Local Environmental Plan 2010, essential services were available or could be made available, and the parties had reached a s 34 agreement, the Court could properly uphold the appeal and grant development consent subject to conditions.

Court Disposition

Appeal upheld; development consent granted subject to conditions.

Orders

  • ['The written requests pursuant to clause 4.6 of the Auburn Local Environmental Plan 2010 to vary the development standards in clause 4.3 Height of Buildings and clause 4.4 Floor Space Ratio prepared by Think Planners dated February 2022 are upheld.' 'The appeal is upheld.' 'Consent is granted to Development...