Architecture Design Studio (NSW) Pty Ltd v Canterbury-Bankstown Council [2021] NSWLEC 1488

Architecture Design Studio (NSW) Pty Ltd v Canterbury-Bankstown Council [2021] NSWLEC 1488

Because the amended boarding house proposal was permissible with consent, the cl 4.6 request justified the building height variation, relevant planning controls and environmental considerations were satisfied or acceptably addressed by conditions, and the proposal was in the public interest, the parties' agreed decision to uphold the appeal and grant consent was a decision the Court could have made. The Court was therefore required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with that agreement.

Jurisdiction
Australia
Judgment Date
24 August 2021
Procedural Posture
Class 1 Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of Development Application Da640/2019 / Proceedings Resolved by Agreement Following Conciliation Conferences Under S 34 of the Land and Environment Court Act 1979; Final Orders Made
Outcome
Appeal upheld; development consent granted subject to conditions.
Legal Topics
['boarding House Development' 'deemed Refusal Appeal' 'conciliation Conference Agreement' 'clause 4.6 Variation Request' 'building Height Development Standard' 'affordable Rental Housing' 'flood Prone Land' 'contamination and Remediation']
['planning and Environment Law' 'development Consent' 'local Environmental Planning'] ['boarding House Development' 'deemed Refusal Appeal' 'conciliation Conference Agreement' 'clause 4.6 Variation Request' 'building Height Development Standard' 'affordable Rental Housing' 'flood Prone Land' 'contamination and Remediation']

Case Brief

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Procedural Posture

Class 1 Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of Development Application Da640/2019 / Proceedings Resolved by Agreement Following Conciliation Conferences Under S 34 of the Land and Environment Court Act 1979; Final 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 jurisdictional prerequisites for granting development consent were satisfied.' 'Whether the clause 4.6 variation request justified contravention of the building height development standard in cl 4.3 of Canterbury Local Environmental Plan 2012.' 'Whether the proposed boarding house was permissible with consent and acceptable having regard to relevant planning controls, flood, stormwater, contamination, character, impacts, site suitability and public interest.']

Ratio Decidendi

Because the amended boarding house proposal was permissible with consent, the cl 4.6 request justified the building height variation, relevant planning controls and environmental considerations were satisfied or acceptably addressed by conditions, and the proposal was in the public interest, the parties' agreed decision to uphold the appeal and grant consent was a decision the Court could have made. The Court was therefore required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with that agreement.

Court Disposition

Appeal upheld; development consent granted subject to conditions.

Orders

  • ['The appeal is upheld.' 'The application for development consent to Development Application DA 640/2019 for a three storey residential boarding house containing 23 rooms and associated facilities including a communal room, and one basement level of parking containing 5 car spaces, 3 motorcycle spaces and 5 bicycle...