Castle Constructions Pty Ltd v Ku-ring-gai Council [2021] NSWLEC 1515

Castle Constructions Pty Ltd v Ku-ring-gai Council [2021] NSWLEC 1515

Because the Court was satisfied that all jurisdictional prerequisites to granting consent were met, including the cl 4.6 variation to the height of buildings standard, and because the parties' agreed decision was one the Court could have made in the proper exercise of its functions, s 34(3) required the proceedings to be disposed of in accordance with that agreement by upholding the appeal and granting development consent subject to conditions.

Jurisdiction
Australia
Judgment Date
03 September 2021
Procedural Posture
Class 1 Appeal Against Refusal of Development Application / Final Orders Following S 34 Conciliation Conference Agreement
Outcome
Appeal upheld; development consent granted subject to conditions.
Legal Topics
['development Application Appeal' 'conciliation Conference' 'height of Buildings Development Standard Variation' 'heritage Conservation Area' 'basix' 'remediation of Land' 'stormwater and Water Sensitive Urban Design']
['planning and Environment Law' 'development Consent'] ['development Application Appeal' 'conciliation Conference' 'height of Buildings Development Standard Variation' 'heritage Conservation Area' 'basix' 'remediation of Land' 'stormwater and Water Sensitive Urban Design']

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Procedural Posture

Class 1 Appeal Against Refusal of Development Application / Final Orders Following S 34 Conciliation Conference Agreement

Legal Issues

  1. 1 ["Whether the parties' agreement granting consent to DA 0424/20 subject to conditions 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 jurisdictional prerequisites to grant development consent were satisfied, including SEPP 55 contamination, SEPP BASIX, KLEP zoning, height of buildings variation, floor space ratio, heritage, acid sulphate soils, stormwater and notification requirements.' "Whether the Applicant's written request under cl 4.6 of KLEP justified contravention of the height of buildings development standard in cl 4.3 of KLEP."]

Ratio Decidendi

Because the Court was satisfied that all jurisdictional prerequisites to granting consent were met, including the cl 4.6 variation to the height of buildings standard, and because the parties' agreed decision was one the Court could have made in the proper exercise of its functions, s 34(3) required the proceedings to be disposed of in accordance with that agreement by upholding the appeal and granting development consent subject to conditions.

Court Disposition

Appeal upheld; development consent granted subject to conditions.

Orders

  • ["The Applicant's written request prepared pursuant to the provisions of cl 4.6 of KLEP and seeking a variation to the height of building development standard in cl 4.3 of the KLEP is upheld." 'The Appeal is upheld.' 'Development consent is granted to DA 0424/20 (as amended) for the demolition of existing pool and...