Beasley v Shoalhaven City Council [2021] NSWLEC 1249

Beasley v Shoalhaven City Council [2021] NSWLEC 1249

Because the amended development application, supporting documents, agreed conditions and clause 4.6 written requests satisfied the relevant jurisdictional requirements, justified the height and subdivision standard variations, resolved Council's contentions and resident issues, and involved a decision the Court could make in the proper exercise of its functions, the Court was required under s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with the parties' agreement by upholding the appeal and granting development consent subject to conditions.

Jurisdiction
Australia
Judgment Date
14 May 2021
Procedural Posture
Class 1 Appeal Against Deemed Refusal of Development Application Da19/2160 Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 / Final Orders Following Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979 and Agreement Between the Parties
Outcome
Appeal upheld; development consent granted subject to conditions.
Legal Topics
['development Application' 'deemed Refusal Appeal' 'tourist and Visitor Accommodation' 'food and Drink Premises' 'height Development Standard Variation' 'subdivision Development Standard Variation' 'clause 4.6 Written Requests' 'integrated Development' 'bushfire Prone Land' 'coastal Management' 'acid Sulfate Soils' 'flood Planning' 'parking' 'conciliation Conference']
['planning and Environment Law' 'development Consent' 'local Environmental Planning'] ['development Application' 'deemed Refusal Appeal' 'tourist and Visitor Accommodation' 'food and Drink Premises' 'height Development Standard Variation' 'subdivision Development Standard Variation' 'clause 4.6 Written Requests' 'integrated Development' 'bushfire Prone Land' 'coastal Management' 'acid Sulfate Soils' 'flood Planning' 'parking' 'conciliation Conference']

Case Brief

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Procedural Posture

Class 1 Appeal Against Deemed Refusal of Development Application Da19/2160 Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 / Final Orders Following Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979 and Agreement Between the Parties

Legal Issues

  1. 1 ['Whether leave should be granted to amend the development application to allow a two-lot subdivision and rely on amended plans and documents.' 'Whether the Court could make orders by agreement under s 34(3) of the Land and Environment Court Act 1979.' 'Whether the clause 4.6 written request justified variation of the height of buildings development standard in cl 4.3 of the Shoalhaven Local Environmental Plan 2014.' 'Whether the clause 4.6 written request justified variation of the subdivision standard for land used for tourist and visitor accommodation in cl 4.2H of the Shoalhaven Local Environmental Plan 2014.' 'Whether Development Application DA19/2160 satisfied the relevant jurisdictional requirements, including ss 4.14 and 4.15(1) of the Environmental Planning and Assessment Act 1979 and relevant environmental planning instruments.']

Ratio Decidendi

Because the amended development application, supporting documents, agreed conditions and clause 4.6 written requests satisfied the relevant jurisdictional requirements, justified the height and subdivision standard variations, resolved Council's contentions and resident issues, and involved a decision the Court could make in the proper exercise of its functions, the Court was required under s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with the parties' 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 is granted leave to amend the development application and rely on the drawings and documents referred to in condition 1 of Annexure "A", the \'Submission under clause 4.6 of Shoalhaven LEP 2014\' dated 19 March 2021 prepared by Cowman Stoddart Pty Ltd, the \'Clause 4.6 request (clause 4.2H)\' dated...