J & J Mascot Developments Pty Ltd v Bayside Council [2023] NSWLEC 1666

J & J Mascot Developments Pty Ltd v Bayside Council [2023] NSWLEC 1666

The Court was satisfied that the amended Development Application had landowner consent, appropriate notification and consideration of submissions, was permissible in the B2 Local Centre zone, satisfied relevant planning controls or was subject to appropriate conditions, and that the clause 4.6 written request adequately justified the height variation because the exceedance was centred within the building footprints, largely related to lift overruns and recessive elements for rooftop communal open space, did not create additional adverse visual or overshadowing impacts, and remained consistent with the objectives of clause 4.3 and the B2 zone. As the parties' agreed decision was one the...

Jurisdiction
Australia
Judgment Date
08 November 2023
Procedural Posture
Class 1 Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application DA 2021/373 / Principal Judgment Following S 34 Conciliation Conference and Agreement Between the Parties
Outcome
Appeal upheld; clause 4.6 written request upheld; development consent granted to DA-2021/373 as amended, subject to conditions.
Legal Topics
['mixed Use Development' 'residential Apartment Building' 'clause 4.6 Written Request' 'height of Buildings Development Standard' 'contamination and Remediation' 'design Quality' 'aircraft Noise and Airspace Operations' 'classified Road Impacts' 'basix']
['environmental Planning and Assessment' 'development Consent' 'land and Environment Court Procedure'] ['mixed Use Development' 'residential Apartment Building' 'clause 4.6 Written Request' 'height of Buildings Development Standard' 'contamination and Remediation' 'design Quality' 'aircraft Noise and Airspace Operations' 'classified Road Impacts' 'basix']

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Procedural Posture

Class 1 Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application DA 2021/373 / Principal Judgment 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' agreement under s 34(3) of the Land and Environment Court Act 1979." 'Whether development consent could be granted to the amended Development Application DA-2021/373 under s 4.16 of the Environmental Planning and Assessment Act 1979.' "Whether the Applicant's clause 4.6 written request adequately justified contravention of the 14m height of buildings development standard in clause 4.3 of the Botany Bay Local Environmental Plan 2013." 'Whether relevant jurisdictional prerequisites and environmental planning controls had been satisfied.']

Ratio Decidendi

The Court was satisfied that the amended Development Application had landowner consent, appropriate notification and consideration of submissions, was permissible in the B2 Local Centre zone, satisfied relevant planning controls or was subject to appropriate conditions, and that the clause 4.6 written request adequately justified the height variation because the exceedance was centred within the building footprints, largely related to lift overruns and recessive elements for rooftop communal open space, did not create additional adverse visual or overshadowing impacts, and remained consistent with the objectives of clause 4.3 and the B2 zone. As the parties' agreed decision was one the...

Court Disposition

Appeal upheld; clause 4.6 written request upheld; development consent granted to DA-2021/373 as amended, subject to conditions.

Orders

  • ['Leave is granted to the Applicant to amend Development Application DA-2021/373 and rely upon the amended plans and documents referred to in condition 1 at Annexure A.' "Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a...