Adamstown BD Pty Ltd v Newcastle City Council [2019] NSWLEC 1174

Adamstown BD Pty Ltd v Newcastle City Council [2019] NSWLEC 1174

The Court upheld the appeal and granted development consent because the parties reached an agreement under s 34(3), and the Commissioner was satisfied that the agreed decision was one the Court could make in the proper exercise of its functions, including because residential flat buildings were permitted with consent in the applicable zones, notification and submissions had been addressed, remediation, design verification and BASIX requirements were satisfied, the floor space ratio standard was met, and the cl 4.6 written request justified the height standard contravention.

Jurisdiction
Australia
Judgment Date
08 April 2019
Procedural Posture
Class 1 Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application 2017/01255 / Final Orders Following Conciliation Conference and Agreement Under S 34(3) of the Land and Environment Court Act 1979
Outcome
Appeal upheld; development application approved subject to conditions.
Legal Topics
['development Application Appeal' 'conciliation Conference' 'development Consent' 'residential Flat Buildings' 'height Development Standard Variation' 'remediation of Land' 'basix' 'design Quality of Residential Apartment Development']
['planning and Environment Law'] ['development Application Appeal' 'conciliation Conference' 'development Consent' 'residential Flat Buildings' 'height Development Standard Variation' 'remediation of Land' 'basix' 'design Quality of Residential Apartment Development']

Case Brief

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Procedural Posture

Class 1 Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application 2017/01255 / Final Orders Following Conciliation Conference and Agreement Under S 34(3) of the Land and Environment Court Act 1979

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 development consent should be granted for the amended development application.' 'Whether consent should be granted notwithstanding contravention of the height development standard in cl 4.3 of Newcastle Local Environmental Plan 2012.']

Ratio Decidendi

The Court upheld the appeal and granted development consent because the parties reached an agreement under s 34(3), and the Commissioner was satisfied that the agreed decision was one the Court could make in the proper exercise of its functions, including because residential flat buildings were permitted with consent in the applicable zones, notification and submissions had been addressed, remediation, design verification and BASIX requirements were satisfied, the floor space ratio standard was met, and the cl 4.6 written request justified the height standard contravention.

Court Disposition

Appeal upheld; development application approved subject to conditions.

Orders

  • ["The Applicant is granted leave to rely on the amended architectural plans and material referred to in condition 2 of the conditions of consent contained in Annexure 'A'." "The Applicant's written request under cl 4.6 of Newcastle Local Environmental Plan 2012, prepared by KDC and dated 2 April 2019 (contained at...