Lee v Cumberland Council [2019] NSWLEC 1226

Lee v Cumberland Council [2019] NSWLEC 1226

The Court could make the agreed orders because the amended development was permissible with consent in the B4 Mixed Use zone, the revised agreement was lawful under s 34(3) of the Land and Environment Court Act 1979, and the clause 4.6 written request adequately justified the minor height breach by establishing sufficient environmental planning grounds and showing that strict compliance was unreasonable and unnecessary while the objectives of the height standard and zone were met.

Jurisdiction
Australia
Judgment Date
24 May 2019
Procedural Posture
Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application DA 320/2016 / Orders Following S 34 Conciliation Conference and Agreement Between the Parties
Outcome
Appeal upheld; Development Application DA-320/2016 approved subject to conditions in Annexure A.
Legal Topics
['development Application for Shop Top Housing' 'clause 4.6 Variation Request' 'height Development Standard' 'section 34 Conciliation Agreement' 'sepp 65 Design Quality' 'basix' 'remediation of Land']
['environmental Planning and Development' 'land and Environment Court Class 1 Proceedings'] ['development Application for Shop Top Housing' 'clause 4.6 Variation Request' 'height Development Standard' 'section 34 Conciliation Agreement' 'sepp 65 Design Quality' 'basix' 'remediation of Land']

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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 DA 320/2016 / Orders Following S 34 Conciliation Conference and Agreement Between the Parties

Legal Issues

  1. 1 ["Whether the Court could lawfully make orders giving effect to the parties' agreement under s 34(3) of the Land and Environment Court Act 1979." 'Whether the clause 4.6 written request justified contravention of the maximum height development standard in the Auburn Local Environmental Plan 2010.' 'Whether preconditions to the grant of development consent had been satisfied.']

Ratio Decidendi

The Court could make the agreed orders because the amended development was permissible with consent in the B4 Mixed Use zone, the revised agreement was lawful under s 34(3) of the Land and Environment Court Act 1979, and the clause 4.6 written request adequately justified the minor height breach by establishing sufficient environmental planning grounds and showing that strict compliance was unreasonable and unnecessary while the objectives of the height standard and zone were met.

Court Disposition

Appeal upheld; Development Application DA-320/2016 approved subject to conditions in Annexure A.

Orders

  • ['The applicants are given leave to amend the development application and rely upon the plans in the proceedings referred to at condition 1 in Annexure A.' "The applicants are to pay the respondent's s 8.15(3) costs thrown away in the proceeding as agreed or assessed." 'The applicants have filed a written request...