CJHA Pty Ltd v Mid-Coast Council [2021] NSWLEC 1539

CJHA Pty Ltd v Mid-Coast Council [2021] NSWLEC 1539

The Court upheld the cl 4.6 request because the height standard was unreasonable and unnecessary in the circumstances, the objectives of the standard and R3 zone were achieved despite non-compliance, the exceedance was minor and visually limited, and the proposal was in the public interest. Having considered the relevant LEP and SEPP controls, expert evidence and public submissions, the Court was satisfied the development was acceptable. The deferred commencement condition was unnecessary because any required Water Management Act activity approval was adequately addressed by a condition requiring compliance with such approval before the relevant activity occurred, and the Court could...

Jurisdiction
Australia
Judgment Date
29 September 2021
Procedural Posture
Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No 283/2019 / Principal Judgment and Final Orders Granting Development Consent Subject to Conditions
Outcome
Appeal upheld; development consent granted subject to conditions; cl 4.6 written request upheld.
Legal Topics
['residential Flat Building' 'height of Buildings Development Standard' 'clause 4.6 Written Request' 'state Environmental Planning Policy No 65—design Quality of Residential Apartment Development' 'coastal Management Sepp' 'integrated Development and Water Management Act Activity Approval' 'conditions of Consent' 'environmental Conservation Land and Public Access']
['planning and Environment Law' 'development Consent' 'land Use and Subdivision'] ['residential Flat Building' 'height of Buildings Development Standard' 'clause 4.6 Written Request' 'state Environmental Planning Policy No 65—design Quality of Residential Apartment Development' 'coastal Management Sepp' 'integrated Development and Water Management Act Activity Approval' 'conditions of Consent' 'environmental Conservation Land and Public Access']

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Procedural Posture

Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No 283/2019 / Principal Judgment and Final Orders Granting Development Consent Subject to Conditions

Legal Issues

  1. 1 ["Whether the Applicant's written request under cl 4.6 of the Great Lakes Local Environmental Plan 2014 justified contravention of the 12m height of buildings standard in cl 4.3." 'Whether development consent should be granted for consolidation of lots, a residential flat building, Torrens title subdivision and strata subdivision at 12 Yamba Street, Hawks Nest.' 'Whether a deferred commencement condition requiring an activity approval for potential de-watering under s 91 of the Water Management Act 2000 was necessary or appropriate.' 'Whether a condition requiring a walking track through the E2-zoned land had a sufficient nexus with the proposed development and was appropriate.' 'Whether relevant environmental planning instruments, including the Great Lakes Local Environmental Plan 2014, Coastal Management SEPP, SEPP 65, SEPP 55 and BASIX SEPP, were satisfied.']

Ratio Decidendi

The Court upheld the cl 4.6 request because the height standard was unreasonable and unnecessary in the circumstances, the objectives of the standard and R3 zone were achieved despite non-compliance, the exceedance was minor and visually limited, and the proposal was in the public interest. Having considered the relevant LEP and SEPP controls, expert evidence and public submissions, the Court was satisfied the development was acceptable. The deferred commencement condition was unnecessary because any required Water Management Act activity approval was adequately addressed by a condition requiring compliance with such approval before the relevant activity occurred, and the Court could...

Court Disposition

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

Orders

  • ["The Applicant's written request to contravene the height of building standard at cl 4.3 of the Great Lakes Local Environmental Plan 2014, pursuant to cl 4.6 of the Great Lakes Local Environmental Plan 2014, is upheld." 'The appeal is upheld.' 'Development consent is granted to Development Application No 283/2019...