Al Abrahim v Georges River Council [2020] NSWLEC 1151

Al Abrahim v Georges River Council [2020] NSWLEC 1151

Because the parties' agreed decision to grant consent subject to conditions was one the Court could have made in the proper exercise of its functions, the Commissioner was required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with that decision. The cl 4.6 request to vary the height standard was upheld because the proposed development achieved the objectives of the standard despite the exceedance, sufficient environmental planning grounds justified the exceedance, and the development was in the public interest.

Jurisdiction
Australia
Judgment Date
01 April 2020
Procedural Posture
Class 1 Development Application Appeal Against Deemed Refusal / Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979; Parties Reached Agreement and Orders Made
Outcome
Appeal upheld; development application approved subject to conditions in Annexure A; written request to vary the height of buildings development standard upheld.
Legal Topics
['development Application' 'deemed Refusal Appeal' 'conciliation Conference' 'clause 4.6 Variation Request' 'height of Buildings Development Standard' 'mixed Use Development' 'land Remediation']
['planning and Environment Law'] ['development Application' 'deemed Refusal Appeal' 'conciliation Conference' 'clause 4.6 Variation Request' 'height of Buildings Development Standard' 'mixed Use Development' 'land Remediation']

Case Brief

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Procedural Posture

Class 1 Development Application Appeal Against Deemed Refusal / Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979; Parties Reached Agreement and Orders Made

Legal Issues

  1. 1 ["Whether the parties' agreed decision was one 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 the written request under cl 4.6 of the Kogarah Local Environmental Plan 2012 to vary the height of buildings development standard in cl 4.3 was well founded.' 'Whether jurisdictional matters, including zoning, land contamination, floor space ratio and development standards, were satisfied so that consent could be granted under s 4.16 of the Environmental Planning and Assessment Act 1979.']

Ratio Decidendi

Because the parties' agreed decision to grant consent subject to conditions was one the Court could have made in the proper exercise of its functions, the Commissioner was required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with that decision. The cl 4.6 request to vary the height standard was upheld because the proposed development achieved the objectives of the standard despite the exceedance, sufficient environmental planning grounds justified the exceedance, and the development was in the public interest.

Court Disposition

Appeal upheld; development application approved subject to conditions in Annexure A; written request to vary the height of buildings development standard upheld.

Orders

  • ['The written request seeking a variation of the development standard for the height of buildings set out in clause 4.3 of the Kogarah Local Environmental Plan 2012 on the site set out in "Amended Clause 4.6 Variation Request – Height of Buildings (CL 4.3 KLEP 2012)" variation request prepared by BMA Urban dated 11...