Aplus Architecture Pty Ltd trading as Aplus Design Group v Willoughby City Council [2023] NSWLEC 1273

Aplus Architecture Pty Ltd trading as Aplus Design Group v Willoughby City Council [2023] NSWLEC 1273

The Court upheld the appeal and approved the amended development application because the parties had reached a s 34 agreement that the Court could have made in the proper exercise of its functions. The Court was satisfied that the development was permissible with consent, that relevant jurisdictional requirements under the Willoughby Local Environmental Plan 2012 and applicable State environmental planning policies were met, that the clause 4.6 requests for height and floor space ratio variations demonstrated unreasonable or unnecessary compliance and sufficient environmental planning grounds, and that the proposal was in the public interest and raised no State or regional environmental...

Jurisdiction
Australia
Judgment Date
13 June 2023
Procedural Posture
Class 1 Development Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of Development Application DA No 2022/95 / Final Orders Following S 34 Conciliation Conference and Agreement Between the Parties
Outcome
Appeal upheld; amended development application approved subject to conditions; clause 4.6 written requests for height and floor space ratio variations upheld.
Legal Topics
['shop Top Housing Development' 'variation to Height of Building Development Standard' 'variation to Floor Space Ratio Development Standard' 'clause 4.6 Written Requests' 'section 34 Conciliation Agreement' 'deemed Refusal Appeal']
['planning and Environment Law' 'development Consent' 'land and Environment Court Procedure'] ['shop Top Housing Development' 'variation to Height of Building Development Standard' 'variation to Floor Space Ratio Development Standard' 'clause 4.6 Written Requests' 'section 34 Conciliation Agreement' 'deemed Refusal Appeal']

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Procedural Posture

Class 1 Development Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of Development Application DA No 2022/95 / Final Orders Following S 34 Conciliation Conference and Agreement Between the Parties

Legal Issues

  1. 1 ["Whether the Court could dispose of the proceedings in accordance with the parties' s 34 agreement under s 34(3) of the Land and Environment Court Act 1979." 'Whether the proposed shop top housing and mixed use development was permissible with consent on the Site under the Willoughby Local Environmental Plan 2012.' "Whether the applicant's clause 4.6 written requests justified contraventions of the height of buildings development standards in clauses 4.3 and 4.3A of the Willoughby Local Environmental Plan 2012." "Whether the applicant's clause 4.6 written request justified contravention of the floor space ratio development standard in clause 4.4 of the Willoughby Local Environmental Plan 2012." 'Whether applicable environmental planning instruments and jurisdictional preconditions were satisfied so that development consent could be granted.']

Ratio Decidendi

The Court upheld the appeal and approved the amended development application because the parties had reached a s 34 agreement that the Court could have made in the proper exercise of its functions. The Court was satisfied that the development was permissible with consent, that relevant jurisdictional requirements under the Willoughby Local Environmental Plan 2012 and applicable State environmental planning policies were met, that the clause 4.6 requests for height and floor space ratio variations demonstrated unreasonable or unnecessary compliance and sufficient environmental planning grounds, and that the proposal was in the public interest and raised no State or regional environmental...

Court Disposition

Appeal upheld; amended development application approved subject to conditions; clause 4.6 written requests for height and floor space ratio variations upheld.

Orders

  • ['The appeal is upheld.' 'Development Application No. DA2022/95 (as amended) for alterations and additions to the retained part of the existing building to provide a mixed use building with retail on Ground Floor, Level 1 and Level 3, and residential apartments on Levels 3 to 6, above ground carparking, reduction in...