AJJ Burwood Pty Limited v Burwood Council [2019] NSWLEC 1585

AJJ Burwood Pty Limited v Burwood Council [2019] NSWLEC 1585

The Court approved the clause 4.6 variation because the written request adequately demonstrated that compliance with the height standard was unreasonable or unnecessary, sufficient environmental planning grounds justified the contravention, the proposal achieved the objectives of the height standard and the R1 General Residential zone, the relevant non-compliant elements would not cause additional adverse environmental impacts, and the decision was one the Court could make under s 34(3) of the Land and Environment Court Act 1979.

Jurisdiction
Australia
Judgment Date
28 November 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 No 10.2018.14.1 / Conciliation Conference Under S 34 of the Land and Environment Court Act 1979; Final Orders Made by Agreement
Outcome
Appeal upheld; development application approved subject to conditions.
Legal Topics
['development Application' 'conciliation Conference' 'clause 4.6 Variation Request' 'height of Buildings Development Standard' 'residential Flat Building']
['planning and Environment Law'] ['development Application' 'conciliation Conference' 'clause 4.6 Variation Request' 'height of Buildings Development Standard' 'residential Flat Building']

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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 No 10.2018.14.1 / Conciliation Conference Under S 34 of the Land and Environment Court Act 1979; Final Orders Made by Agreement

Legal Issues

  1. 1 ["Whether the Court could dispose of the proceedings in accordance with the parties' agreement under s 34(3) of the Land and Environment Court Act 1979." 'Whether the clause 4.6 written request justified contravention of the height of buildings development standard in clause 4.3 of Burwood Local Environmental Plan 2012.' 'Whether the proposed development was in the public interest and consistent with the objectives of the height standard and the R1 General Residential zone.']

Ratio Decidendi

The Court approved the clause 4.6 variation because the written request adequately demonstrated that compliance with the height standard was unreasonable or unnecessary, sufficient environmental planning grounds justified the contravention, the proposal achieved the objectives of the height standard and the R1 General Residential zone, the relevant non-compliant elements would not cause additional adverse environmental impacts, and the decision was one the Court could make under s 34(3) of the Land and Environment Court Act 1979.

Court Disposition

Appeal upheld; development application approved subject to conditions.

Orders

  • ['The applicant is granted leave to rely upon the amended plans and documentation referred to in condition 1 of Annexure "A".' "The applicant is to pay the respondent's costs thrown away as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $5,000."...