Balvest Four Pty Ltd v Waverley Council [2020] NSWLEC 1530

Balvest Four Pty Ltd v Waverley Council [2020] NSWLEC 1530

The Court was satisfied that the relevant jurisdictional preconditions were met, including that the appeal was properly brought and in time, owner consent existed, relevant environmental planning instruments had been considered, the development remained permissible in the R3 Medium Density Residential zone, notification and submissions had been addressed, and the parties had agreed to conditions. The amended plans addressed Council's contentions. Accordingly, the parties' agreed decision was one the Court could have made in the proper exercise of its functions, so the Court was required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with...

Jurisdiction
Australia
Judgment Date
03 November 2020
Procedural Posture
Class 1 Appeal Against Refusal of Modification Application No. DA 48/2020/b / Final Orders Following S 34 Conciliation Conference Agreement
Outcome
Appeal upheld; leave granted to rely on amended plans; modification application granted consent subject to conditions.
Legal Topics
['modification Application' 'development Consent' 'residential Flat Building Alterations and Additions' 'strata Subdivision' 'jurisdictional Preconditions' 'conciliation Conference' 'private Open Space' 'communal Open Space' 'natural Ventilation' 'storage']
['environmental Planning Law' 'land and Environment Court Proceedings'] ['modification Application' 'development Consent' 'residential Flat Building Alterations and Additions' 'strata Subdivision' 'jurisdictional Preconditions' 'conciliation Conference' 'private Open Space' 'communal Open Space' 'natural Ventilation' 'storage']

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Procedural Posture

Class 1 Appeal Against Refusal of Modification Application No. DA 48/2020/b / Final Orders Following S 34 Conciliation Conference Agreement

Legal Issues

  1. 1 ["Whether the appeal was properly brought within the Court's Class 1 jurisdiction and within time under the Environmental Planning and Assessment Act 1979." 'Whether the jurisdictional preconditions to grant consent to the modification application were satisfied.' "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 amended plans addressed Council's contentions concerning private and communal open space, natural ventilation, storage and occupant amenity."]

Ratio Decidendi

The Court was satisfied that the relevant jurisdictional preconditions were met, including that the appeal was properly brought and in time, owner consent existed, relevant environmental planning instruments had been considered, the development remained permissible in the R3 Medium Density Residential zone, notification and submissions had been addressed, and the parties had agreed to conditions. The amended plans addressed Council's contentions. Accordingly, the parties' agreed decision was one the Court could have made in the proper exercise of its functions, so the Court was required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with...

Court Disposition

Appeal upheld; leave granted to rely on amended plans; modification application granted consent subject to conditions.

Orders

  • ['The appeal is upheld.' 'Leave is granted for the applicant to rely upon amended plans dated 29 September 2020 prepared by Raw Concept Designs and draft strata plan prepared by Philip D. Youdale referred to in Condition 1 of Annexure A.' 'Modification Application DA-48/2020/B (as amended on 29 September 2020) for...