Albert Developments 3 Pty Ltd v Sutherland Shire Council [2022] NSWLEC 1532

Albert Developments 3 Pty Ltd v Sutherland Shire Council [2022] NSWLEC 1532

Because the Court was satisfied that the applicable jurisdictional prerequisites and planning considerations had been addressed, including the cl 4.6 height variation request, and that the parties' agreed decision to grant consent subject to conditions was one the Court could have made in the proper exercise of its functions, s 34(3) of the Land and Environment Court Act 1979 required the Court to dispose of the proceedings in accordance with that agreement.

Jurisdiction
Australia
Judgment Date
28 September 2022
Procedural Posture
Class 1 Appeal Against Refusal of Development Application Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 / Orders Made Following Conciliation Conference and Agreement Between the Parties Under S 34 of the Land and Environment Court Act 1979
Outcome
Appeal upheld; cl 4.6 written request upheld; development consent granted subject to conditions in Annexure A.
Legal Topics
['development Application for Multi Dwelling Housing With Affordable Housing Component' 'clause 4.6 Variation Request for Height of Buildings Development Standard' 'conciliation Conference Agreement' 'jurisdictional Prerequisites for Grant of Development Consent' 'public Submissions and Objector Concerns' 'flood Planning, Contamination, BASIX, Stormwater and Urban Design Considerations']
['planning and Environment Law' 'development Consent' 'land and Environment Court Procedure'] ['development Application for Multi Dwelling Housing With Affordable Housing Component' 'clause 4.6 Variation Request for Height of Buildings Development Standard' 'conciliation Conference Agreement' 'jurisdictional Prerequisites for Grant of Development Consent' 'public Submissions and Objector Concerns' 'flood Planning, Contamination, Basix, Stormwater and Urban Design Considerations']

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Procedural Posture

Class 1 Appeal Against Refusal of Development Application Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 / Orders Made Following Conciliation Conference and Agreement Between the Parties Under S 34 of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the parties' agreement to grant consent was a decision 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 Applicant's written request under cl 4.6 of Sutherland Shire Local Environmental Plan 2015 to vary the height of buildings development standard in cl 4.3 should be upheld." 'Whether jurisdictional prerequisites and relevant planning considerations under the Environmental Planning and Assessment Act 1979 and applicable environmental planning instruments were satisfied before consent could be granted.']

Ratio Decidendi

Because the Court was satisfied that the applicable jurisdictional prerequisites and planning considerations had been addressed, including the cl 4.6 height variation request, and that the parties' agreed decision to grant consent subject to conditions was one the Court could have made in the proper exercise of its functions, s 34(3) of the Land and Environment Court Act 1979 required the Court to dispose of the proceedings in accordance with that agreement.

Court Disposition

Appeal upheld; cl 4.6 written request upheld; development consent granted subject to conditions in Annexure A.

Orders

  • ["The Applicant's written request prepared pursuant to cl 4.6 of Sutherland Local Environmental Plan 2015, and seeking to vary the height of buildings development standard in cl 4.3 of Sutherland Shire Local Environmental Plan 2015, is upheld." 'The Appeal is upheld.' 'Development Application No DA21/0357 for...