Cosmar Enterprises Pty Ltd v Wollongong City Council [2021] NSWLEC 1637

Cosmar Enterprises Pty Ltd v Wollongong City Council [2021] NSWLEC 1637

The Court was satisfied that the agreed decision to grant development consent to the amended application subject to conditions was one it could make in the proper exercise of its functions because the proposal was permissible in the R2 Low Density Residential zone, the cl 4.6 written request justified the 9%...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
22 October 2021
Procedural Posture
Class 1 Appeal Against Refusal of a Development Application / Final Orders Following Agreement Reached at a Conciliation Conference Under S 34 of the Land and Environment Court Act 1979
Outcome
Appeal upheld; cl 4.6 written request upheld; development consent granted subject to conditions; Applicant to pay Respondent's thrown away costs as agreed or assessed.
Legal Topics
['development Application' 'multi Dwelling Housing' 'development Consent' 'development Standard Variation' 'minimum Site Width' 'conciliation Conference']
['planning and Environment Law'] ['development Application' 'multi Dwelling Housing' 'development Consent' 'development Standard Variation' 'minimum Site Width' 'conciliation Conference']

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Procedural Posture

Class 1 Appeal Against Refusal of a Development Application / Final Orders Following Agreement Reached at a Conciliation Conference Under S 34 of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether development consent should be granted for the amended development application for multi-dwelling housing and strata subdivision at 5 Ryan Street, Balgownie.' 'Whether the written request under cl 4.6 of the Wollongong Local Environmental Plan 2009 justified variation of the minimum site width development standard under cl 7.14 of the WLEP.' 'Whether the decision agreed by the parties was one the Court could make 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 agreed decision to grant development consent to the amended application subject to conditions was one it could make in the proper exercise of its functions because the proposal was permissible in the R2 Low Density Residential zone, the cl 4.6 written request justified the 9% variation from the minimum site width standard, contamination and BASIX preconditions were addressed, and the parties had reached an agreement under s 34(3) of the Land and Environment Court Act 1979.

Court Disposition

Appeal upheld; cl 4.6 written request upheld; development consent granted subject to conditions; Applicant to pay Respondent's thrown away costs as agreed or assessed.

Orders

  • ['The Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) as agreed or assessed.' "The Applicant's written request under cl 4.6 of the Wollongong Local...