Coles Group Property Developments Ltd v Sutherland Shire Council [2020] NSWLEC 1458

Coles Group Property Developments Ltd v Sutherland Shire Council [2020] NSWLEC 1458

The Court was satisfied that the amended development application and supporting documents, the agreed conditions, and the cl 4.6 written requests met the applicable statutory and planning requirements. The height and floor space ratio non-compliances were justified by sufficient environmental planning grounds, strict compliance was unreasonable and unnecessary, the development was consistent with the relevant objectives and caused no adverse amenity or character impacts. Because the parties' agreement was a decision the Court could have made, the Court was required to dispose of the proceedings in accordance with it.

Jurisdiction
Australia
Judgment Date
29 September 2020
Procedural Posture
Class 1 Appeal Against Deemed Refusal of Development Application DA 19/0333 Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 / Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979; Parties Reached Agreement and the Court Made Orders
Outcome
Appeal upheld; development consent granted subject to conditions; cl 4.6 variation requests upheld; applicant ordered to pay agreed thrown-away costs.
Legal Topics
['development Application Appeal' 'shop Top Housing Development' 'clause 4.6 Written Variation Requests' 'height Development Standard' 'floor Space Ratio Development Standard' 'conciliation Agreement' 'development Consent Conditions']
['environmental Planning and Development' 'land and Environment Court Proceedings'] ['development Application Appeal' 'shop Top Housing Development' 'clause 4.6 Written Variation Requests' 'height Development Standard' 'floor Space Ratio Development Standard' 'conciliation Agreement' 'development Consent Conditions']

Case Brief

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Procedural Posture

Class 1 Appeal Against Deemed Refusal of Development Application DA 19/0333 Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 / Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979; Parties Reached Agreement and the Court Made Orders

Legal Issues

  1. 1 ['Whether the Court could grant leave to amend the development application and rely on amended plans and documents.' 'Whether jurisdictional prerequisites under s 4.15(1) of the Environmental Planning and Assessment Act 1979 and relevant environmental planning instruments were satisfied.' 'Whether the cl 4.6 written requests justified variation of the height of buildings and floor space ratio development standards under Sutherland Shire Local Environmental Plan 2015.' "Whether the parties' agreed decision was one the Court could have made in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979."]

Ratio Decidendi

The Court was satisfied that the amended development application and supporting documents, the agreed conditions, and the cl 4.6 written requests met the applicable statutory and planning requirements. The height and floor space ratio non-compliances were justified by sufficient environmental planning grounds, strict compliance was unreasonable and unnecessary, the development was consistent with the relevant objectives and caused no adverse amenity or character impacts. Because the parties' agreement was a decision the Court could have made, the Court was required to dispose of the proceedings in accordance with it.

Court Disposition

Appeal upheld; development consent granted subject to conditions; cl 4.6 variation requests upheld; applicant ordered to pay agreed thrown-away costs.

Orders

  • ['The Applicant is granted leave to amend the development application and rely on amended plans in Condition 1 at Annexure A.' 'Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the...