Archian Pty Ltd v Ku-ring-gai Council [2023] NSWLEC 1546

Archian Pty Ltd v Ku-ring-gai Council [2023] NSWLEC 1546

Because the amended development application resolved the parties' contentions, complied with or adequately addressed the applicable planning controls and statutory requirements, and was subject to agreed conditions, the Commissioner was satisfied under s 34(3) of the Land and Environment Court Act 1979 that the decision was one the Court could make in the proper exercise of its functions; the proceedings were therefore disposed of by upholding the appeal and granting development consent subject to conditions.

Jurisdiction
Australia
Judgment Date
21 September 2023
Procedural Posture
Class 1 Appeal Against Refusal of Development Application Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 / Orders Following Conciliation Conference Under S 34 of the Land and Environment Court Act 1979 and Agreement Between the Parties
Outcome
Appeal upheld; development consent granted subject to conditions; Applicant ordered to pay Respondent's costs thrown away.
Legal Topics
['development Application for Centre Based Childcare Facility' 'amended Development Application' 'section 34 Conciliation Agreement' 'costs Thrown Away' 'environmental Planning Instruments' 'public Submissions' 'contamination and Remediation' 'terrestrial Biodiversity']
['planning and Environment Law' 'development Consent' 'land and Environment Court Procedure'] ['development Application for Centre Based Childcare Facility' 'amended Development Application' 'section 34 Conciliation Agreement' 'costs Thrown Away' 'environmental Planning Instruments' 'public Submissions' 'contamination and Remediation' 'terrestrial Biodiversity']

Case Brief

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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 Following Conciliation Conference Under S 34 of the Land and Environment Court Act 1979 and Agreement Between the Parties

Legal Issues

  1. 1 ["Whether the Court could make orders giving effect to the parties' agreement under s 34(3) of the Land and Environment Court Act 1979." 'Whether development consent should be granted to the amended development application for demolition and construction of a centre based childcare facility for 72 children.' 'Whether costs thrown away should be paid under s 8.15(3) of the Environmental Planning and Assessment Act 1979.']

Ratio Decidendi

Because the amended development application resolved the parties' contentions, complied with or adequately addressed the applicable planning controls and statutory requirements, and was subject to agreed conditions, the Commissioner was satisfied under s 34(3) of the Land and Environment Court Act 1979 that the decision was one the Court could make in the proper exercise of its functions; the proceedings were therefore disposed of by upholding the appeal and granting development consent subject to conditions.

Court Disposition

Appeal upheld; development consent granted subject to conditions; Applicant ordered to pay Respondent's costs thrown away.

Orders

  • ["The Applicant is to pay the Respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $18,000." 'The appeal is upheld.' 'Development consent is granted to Development Application DA0378/21, as amended, for the demolition of existing structures...