Shamieh v Waverley Council [2019] NSWLEC 1144

Shamieh v Waverley Council [2019] NSWLEC 1144

The amended development was permissible in the R2 Residential low density zone, complied with height, floor space ratio and setback controls, no longer required pedestrian access from Loombah Road over the Council's road reserve, and addressed the jurisdictional prerequisites to the grant of consent. The parties' decision was therefore one the Court could have made in the proper exercise of its functions, requiring the Court under s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with that decision.

Jurisdiction
Australia
Judgment Date
03 April 2019
Procedural Posture
Class 1 Appeal Against Refusal of a Development Application / Orders Following S 34 AA Conciliation Conference and Agreement Between the Parties
Outcome
Appeal upheld; leave granted to amend the development application; development consent granted subject to conditions; costs ordered.
Legal Topics
['development Application' 'development Consent' 'conciliation Conference' 'amendment of Development Application' 'costs']
['environmental and Planning Law' 'land and Environment Court Proceedings'] ['development Application' 'development Consent' 'conciliation Conference' 'amendment of Development Application' 'costs']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 1 Appeal Against Refusal of a Development Application / Orders Following S 34 AA Conciliation Conference and Agreement Between the Parties

Legal Issues

  1. 1 ["Whether the amended Development Application could be approved in the proper exercise of the Court's functions." "Whether the parties' agreement following conciliation should be given effect under s 34(3) of the Land and Environment Court Act 1979." 'Whether jurisdictional prerequisites to the grant of development consent had been addressed.']

Ratio Decidendi

The amended development was permissible in the R2 Residential low density zone, complied with height, floor space ratio and setback controls, no longer required pedestrian access from Loombah Road over the Council's road reserve, and addressed the jurisdictional prerequisites to the grant of consent. The parties' decision was therefore one the Court could have made in the proper exercise of its functions, requiring the Court under s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with that decision.

Court Disposition

Appeal upheld; leave granted to amend the development application; development consent granted subject to conditions; costs ordered.

Orders

  • ['The Applicant is granted leave to amend Development Application DA-94/2017 and to rely upon the amended plans and documents listed in Condition 1 of Annexure "A" hereto.' "The Applicant is to pay the Respondent's costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of...