Clutch Developments Pty Ltd v Waverley Council [2023] NSWLEC 1496

Clutch Developments Pty Ltd v Waverley Council [2023] NSWLEC 1496

Because the amended development application resolved the Council's contentions, the applicable jurisdictional requirements and relevant planning controls were addressed, the cl 4.6 request for the height variation was satisfactory, and there was no jurisdictional impediment to the proposed orders, the parties' agreed decision was one the Court could have made in the proper exercise of its functions and the Court was required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with that agreement.

Jurisdiction
Australia
Judgment Date
01 September 2023
Procedural Posture
Class 1 Development Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 / 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; Applicant ordered to pay Respondent's costs thrown away.
Legal Topics
['demolition of Existing Buildings' 'lot Amalgamation' 'shop Top Housing' 'basement Parking' 'deemed Refusal Appeal' 'section 34 Conciliation Agreement' 'clause 4.6 Variation to Height of Buildings Development Standard' 'costs Thrown Away']
['planning and Environment' 'development Consent' 'land and Environment Court Procedure'] ['demolition of Existing Buildings' 'lot Amalgamation' 'shop Top Housing' 'basement Parking' 'deemed Refusal Appeal' 'section 34 Conciliation Agreement' 'clause 4.6 Variation to Height of Buildings Development Standard' 'costs Thrown Away']

Case Brief

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Procedural Posture

Class 1 Development Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 / 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 the parties' agreed decision granting consent to Development Application No. DA-472/2022, as amended, was a decision the Court could have made in the proper exercise of its functions." 'Whether there was any jurisdictional impediment to granting development consent for the amended development application.' "Whether the Applicant's written request under cl 4.6 of the Waverley Local Environmental Plan 2012 adequately justified variation of the height of buildings development standard in cl 4.3." 'Whether the amended proposal satisfied relevant matters under s 4.15(1) of the Environmental Planning and Assessment Act 1979 and applicable environmental planning instruments.']

Ratio Decidendi

Because the amended development application resolved the Council's contentions, the applicable jurisdictional requirements and relevant planning controls were addressed, the cl 4.6 request for the height variation was satisfactory, and there was no jurisdictional impediment to the proposed orders, the parties' agreed decision was one the Court could have made in the proper exercise of its functions and the Court was required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with that agreement.

Court Disposition

Appeal upheld; development consent granted subject to conditions; Applicant ordered to pay Respondent's costs thrown away.

Orders

  • ["The Applicant is to pay the Respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $22,000 within 28 days of the date of these orders." 'The appeal is upheld.' 'Development consent is granted to Development Application No. DA-472/2022, as amended,...