Anabia Pty Ltd v Inner West Council [2022] NSWLEC 1489

Anabia Pty Ltd v Inner West Council [2022] NSWLEC 1489

The parties' agreed decision to uphold the appeal and grant consent subject to conditions was a decision the Court could have made in the proper exercise of its functions because the relevant jurisdictional prerequisites were satisfied, including permissibility in the B4 Mixed Use Zone, landowner's consent, compliance with the height control, a well-founded cl 4.6 request for the FSR contravention, and notification with no submissions received. Accordingly, s 34(3) of the Land and Environment Court Act 1979 required the Court to dispose of the proceedings in accordance with the parties' decision.

Jurisdiction
Australia
Judgment Date
14 September 2022
Procedural Posture
Class 1 Development Appeal Against Deemed Refusal of Development Application DA 2021/1315 / Orders Following S 34 Conciliation Conference and Agreement Between the Parties
Outcome
Appeal upheld; development consent granted subject to conditions.
Legal Topics
['development Appeal' 'development Consent' 'change of Use' 'recreational Facility (indoor)' 'clause 4.6 Variation Request' 'section 34 Agreement']
['planning and Environment Law'] ['development Appeal' 'development Consent' 'change of Use' 'recreational Facility (indoor)' 'clause 4.6 Variation Request' 'section 34 Agreement']

Case Brief

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Procedural Posture

Class 1 Development Appeal Against Deemed Refusal of Development Application DA 2021/1315 / Orders Following S 34 Conciliation Conference and Agreement Between the Parties

Legal Issues

  1. 1 ["Whether the parties' agreed decision 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 jurisdictional prerequisites for granting consent to the change of use to a recreational facility (indoor) were satisfied.' 'Whether the cl 4.6 written request justified contravention of the floor space ratio development standard in the Marrickville Local Environmental Plan 2011.']

Ratio Decidendi

The parties' agreed decision to uphold the appeal and grant consent subject to conditions was a decision the Court could have made in the proper exercise of its functions because the relevant jurisdictional prerequisites were satisfied, including permissibility in the B4 Mixed Use Zone, landowner's consent, compliance with the height control, a well-founded cl 4.6 request for the FSR contravention, and notification with no submissions received. Accordingly, s 34(3) of the Land and Environment Court Act 1979 required the Court to dispose of the proceedings in accordance with the parties' decision.

Court Disposition

Appeal upheld; development consent granted subject to conditions.

Orders

  • ['The appeal is upheld.' "Consent is granted to Development Application DA 1315/2021 for the approval for a change of use to a recreational facility (Indoor), with associated carparking, in the basement areas, located within Strata Plan 88894, Lot 2 DP 1261043 and Lot 3 DP 1261043, subject to the conditions set out...