Burgess v Sutherland Shire Council [2021] NSWLEC 1281

Burgess v Sutherland Shire Council [2021] NSWLEC 1281

Because the amended application, reports and proposed conditions addressed the identified planning contentions and jurisdictional matters, and because the cl 4.6 request adequately justified the landscaped area non-compliance, the parties' agreed decision to grant consent was a decision the Court could have made in the proper exercise of its functions; 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 the agreement.

Jurisdiction
Australia
Judgment Date
24 May 2021
Procedural Posture
Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Orders Made Following a Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979 and Agreement Between the Parties
Outcome
Appeal upheld; DA20/0632 approved subject to conditions in Annexure B.
Legal Topics
['development Application' 'sex Services Premises' 'clause 4.6 Variation' 'landscaped Area Development Standard' 'conciliation Conference' 'development Consent Conditions']
['environmental Planning and Development' 'land and Environment'] ['development Application' 'sex Services Premises' 'clause 4.6 Variation' 'landscaped Area Development Standard' 'conciliation Conference' 'development Consent Conditions']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the Court could grant consent to amended Development Application DA20/0632 for alterations and additions to an approved sex services premises and extended hours of operation at 18 Box Road Caringbah.' 'Whether the written request under cl 4.6 of the Sutherland Shire Local Environmental Plan 2015 justified contravention of the landscaped area development standard.' "Whether jurisdictional prerequisites under the Environmental Planning and Assessment Act 1979, the Land and Environment Court Act 1979, the Sutherland Shire Local Environmental Plan 2015 and State Environmental Planning Policy No 55—Remediation of Land were satisfied so the Court could dispose of the proceedings in accordance with the parties' agreement."]

Ratio Decidendi

Because the amended application, reports and proposed conditions addressed the identified planning contentions and jurisdictional matters, and because the cl 4.6 request adequately justified the landscaped area non-compliance, the parties' agreed decision to grant consent was a decision the Court could have made in the proper exercise of its functions; 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 the agreement.

Court Disposition

Appeal upheld; DA20/0632 approved subject to conditions in Annexure B.

Orders

  • ['The Applicant is granted leave to rely on an amended development application incorporating the following: Architectural Plans prepared by Cad Draft Pty Ltd, revisions A, dated 19 April 2021 and drawing Nos A000, A101 to A116; Plan of Management prepared by Julie Bates dated April 2021; Written request prepared...