Cornerstone Design (NSW) Pty Ltd v Georges River Council [2020] NSWLEC 1642

Cornerstone Design (NSW) Pty Ltd v Georges River Council [2020] NSWLEC 1642

Because the parties agreed to an outcome under s 34, and the Commissioner was satisfied that the jurisdictional prerequisites were met and that the agreed decision was one the Court could have made in the proper exercise of its functions, s 34(3) required the proceedings to be disposed of in accordance with the parties' decision. The appeal was upheld and development consent was granted subject to conditions.

Jurisdiction
Australia
Judgment Date
15 December 2020
Procedural Posture
Class 1 Appeal Against Deemed Refusal of Development Application No. Da2020/0223 / Orders Following Conciliation Conference and Agreement Under S 34 of the Land and Environment Court Act 1979
Outcome
Appeal upheld; development consent granted subject to conditions.
Legal Topics
['residential Apartment Development' 'deemed Refusal' 'conciliation Conference' 'clause 4.6 Variation Requests' 'minimum Lot Size Development Standard' 'height of Buildings Development Standard' 'sepp 65 Design Quality' 'basix' 'remediation of Land' 'airport Controlled Activity']
['planning and Environment Law' 'development Consent'] ['residential Apartment Development' 'deemed Refusal' 'conciliation Conference' 'clause 4.6 Variation Requests' 'minimum Lot Size Development Standard' 'height of Buildings Development Standard' 'sepp 65 Design Quality' 'basix' 'remediation of Land' 'airport Controlled Activity']

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Procedural Posture

Class 1 Appeal Against Deemed Refusal of Development Application No. Da2020/0223 / Orders Following Conciliation Conference and Agreement Under S 34 of the Land and Environment Court Act 1979

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 written request under cl 4.6 of the Kogarah Local Environmental Plan 2012 justified variation of the minimum lot size development standard in cl 4.1A.' 'Whether the written request under cl 4.6 of the Kogarah Local Environmental Plan 2012 justified variation of the height of buildings development standard in cl 4.3.' 'Whether relevant jurisdictional prerequisites concerning earthworks, airport-controlled activity, remediation, SEPP 65, qualified designer statements and BASIX were satisfied.']

Ratio Decidendi

Because the parties agreed to an outcome under s 34, and the Commissioner was satisfied that the jurisdictional prerequisites were met and that the agreed decision was one the Court could have made in the proper exercise of its functions, s 34(3) required the proceedings to be disposed of in accordance with the parties' decision. The appeal was upheld and development consent was granted subject to conditions.

Court Disposition

Appeal upheld; development consent granted subject to conditions.

Orders

  • ['The Applicant is granted leave to rely on the amended plans and documents set out in Annexure A.' "The Applicant is to pay the Respondent's costs that have been thrown away as a result off the amendment of the application for development consent under section 8.15(3) of the Environmental Planning and Assessment...