Zaarour v Georges River Council [2021] NSWLEC 1478

Zaarour v Georges River Council [2021] NSWLEC 1478

The Commissioner was satisfied that the jurisdictional prerequisites had been met, including owner consent, notification, Ausgrid referral, consideration of submissions, compliance with applicable Kogarah Local Environmental Plan 2012 standards, consideration of acid sulfate soils, earthworks, contamination and BASIX requirements, and that dual occupancies are permissible with consent in the R2 Zone. The parties' agreed decision was therefore one the Court could have made in the proper exercise of its functions, requiring the Court to dispose of the proceedings in accordance with that decision.

Jurisdiction
Australia
Judgment Date
23 August 2021
Procedural Posture
Class 1 Residential Development Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 / Orders Following S 34 Conciliation Conference and Agreement Between the Parties
Outcome
The appeal was upheld and Development Application No. DA2020/0435, as amended, was approved subject to conditions, with each party to pay its own costs.
Legal Topics
['residential Development Appeal' 'deemed Refusal' 'dual Occupancy' 'development Consent' 'conciliation Conference' 'jurisdictional Prerequisites']
['environmental Planning and Development' 'land and Environment Court Proceedings'] ['residential Development Appeal' 'deemed Refusal' 'dual Occupancy' 'development Consent' 'conciliation Conference' 'jurisdictional Prerequisites']

Case Brief

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Procedural Posture

Class 1 Residential Development Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 / Orders Following S 34 Conciliation Conference and Agreement Between the Parties

Legal Issues

  1. 1 ["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 the jurisdictional prerequisites for granting development consent to the amended Development Application were satisfied.' 'Whether the proposed dual occupancy development was permissible with consent and compliant with relevant planning controls.']

Ratio Decidendi

The Commissioner was satisfied that the jurisdictional prerequisites had been met, including owner consent, notification, Ausgrid referral, consideration of submissions, compliance with applicable Kogarah Local Environmental Plan 2012 standards, consideration of acid sulfate soils, earthworks, contamination and BASIX requirements, and that dual occupancies are permissible with consent in the R2 Zone. The parties' agreed decision was therefore one the Court could have made in the proper exercise of its functions, requiring the Court to dispose of the proceedings in accordance with that decision.

Court Disposition

The appeal was upheld and Development Application No. DA2020/0435, as amended, was approved subject to conditions, with each party to pay its own costs.

Orders

  • ['The appeal is upheld.' 'Development Application No. DA2020/0435 lodged on 10 November 2020, as amended, to demolish the existing dwelling and ancillary structures and the construction of a dual occupancy over basement parking at 10 Kyle Parade, Kyle Bay is approved subject to the conditions in Annexure A to this...