Ng v Willoughby City Council [2021] NSWLEC 1690

Ng v Willoughby City Council [2021] NSWLEC 1690

The Court could make the parties' agreed decision because the relevant jurisdictional preconditions were satisfied, the boarding house was permissible with consent in the R2 Low Density Residential zone, the clause 4.6 height variation request was justified and upheld, and the proposed development complied with or acceptably addressed the applicable planning controls. Accordingly, s 34(3) of the Land and Environment Court Act 1979 required the proceedings to be disposed of in accordance with the parties' agreement.

Jurisdiction
Australia
Judgment Date
11 November 2021
Procedural Posture
Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Following Refusal of Development Application DA 2019/57 / Orders Made on Agreement Under S 34 of the Land and Environment Court Act 1979 Granting Conditional Development Consent
Outcome
Appeal upheld; clause 4.6 written request upheld; development consent granted subject to conditions.
Legal Topics
['boarding House Development' 'r2 Low Density Residential Zone' 'clause 4.6 Variation Request' 'height of Buildings Development Standard' 'section 34 Conciliation Agreement' 'affordable Rental Housing' 'basix' 'remediation of Land' 'flood Planning' 'acid Sulfate Soils' 'earthworks']
['planning and Environment' 'development Consent'] ['boarding House Development' 'r2 Low Density Residential Zone' 'clause 4.6 Variation Request' 'height of Buildings Development Standard' 'section 34 Conciliation Agreement' 'affordable Rental Housing' 'basix' 'remediation of Land' 'flood Planning' 'acid Sulfate Soils' 'earthworks']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Following Refusal of Development Application DA 2019/57 / Orders Made on Agreement Under S 34 of the Land and Environment Court Act 1979 Granting Conditional Development Consent

Legal Issues

  1. 1 ["Whether the parties' decision in the s 34 agreement was a decision the Court could have made in the proper exercise of its functions" 'Whether jurisdictional preconditions under the relevant environmental planning instruments were satisfied' 'Whether the clause 4.6 written request to vary the height of buildings development standard under clause 4.3 of the Willoughby Local Environmental Plan 2012 should be upheld' 'Whether development consent should be granted to the amended development application subject to conditions']

Ratio Decidendi

The Court could make the parties' agreed decision because the relevant jurisdictional preconditions were satisfied, the boarding house was permissible with consent in the R2 Low Density Residential zone, the clause 4.6 height variation request was justified and upheld, and the proposed development complied with or acceptably addressed the applicable planning controls. Accordingly, s 34(3) of the Land and Environment Court Act 1979 required the proceedings to be disposed of in accordance with the parties' agreement.

Court Disposition

Appeal upheld; clause 4.6 written request upheld; development consent granted subject to conditions.

Orders

  • ['The clause 4.6 written request prepared by ABC Planning Pty Ltd dated July 2021 for variation to the height of building development standard under clause 4.3 of the Willoughby Local Environmental Plan 2012 is upheld.' 'The appeal is upheld.' "Development consent is granted to development application no. DA-2019/57...