Refai v Canterbury Bankstown Council [2020] NSWLEC 1680

Refai v Canterbury Bankstown Council [2020] NSWLEC 1680

The parties reached an agreement under s 34 of the Land and Environment Court Act 1979 to approve the amended development application, the amendments and additional material addressed the Council's contentions, the identified jurisdictional matters were satisfied, and there was no jurisdictional impediment. Because the agreed proposed decision was one the Court could have made in the proper exercise of its functions, s 34(3) required the Court to dispose of the proceedings in accordance with that agreement.

Jurisdiction
Australia
Judgment Date
24 December 2020
Procedural Posture
Class 1 Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Application No. DA 163/2018, as Amended / Final Orders Following Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979 and Agreement Between the Parties
Outcome
The appeal was upheld and Development Application No. DA-163/2018, as amended, was approved subject to conditions in Annexure A.
Legal Topics
['development Application' 'residential Flat Building' 'deemed Refusal Appeal' 'conciliation Agreement' 'development Consent' 'jurisdictional Prerequisites']
['planning and Environment Law'] ['development Application' 'residential Flat Building' 'deemed Refusal Appeal' 'conciliation Agreement' 'development Consent' 'jurisdictional Prerequisites']

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Procedural Posture

Class 1 Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Application No. DA 163/2018, as Amended / Final Orders Following Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979 and Agreement Between the Parties

Legal Issues

  1. 1 ['Whether the proposed decision agreed by the parties was a decision that 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 development consent could be granted for demolition and construction of a five storey residential flat building over two levels of basement carparking at 599 – 603 Canterbury Road Belmore.' 'Whether relevant jurisdictional matters under the applicable planning instruments and legislation were satisfied.']

Ratio Decidendi

The parties reached an agreement under s 34 of the Land and Environment Court Act 1979 to approve the amended development application, the amendments and additional material addressed the Council's contentions, the identified jurisdictional matters were satisfied, and there was no jurisdictional impediment. Because the agreed proposed decision was one the Court could have made in the proper exercise of its functions, s 34(3) required the Court to dispose of the proceedings in accordance with that agreement.

Court Disposition

The appeal was upheld and Development Application No. DA-163/2018, as amended, was approved subject to conditions in Annexure A.

Orders

  • ['The appeal is upheld.' 'Development Application No. DA-163/2018, as amended, for demolition of the existing buildings and associated structures and the construction of a five storey residential flat building over two levels of basement carparking on land identified as Lots 29, 30 and 31 in Deposited Plan 10105 and...