De Rigueur v Liverpool City Council [2024] NSWLEC 1369

De Rigueur v Liverpool City Council [2024] NSWLEC 1369

Because the parties' agreed decision was a decision the Court could have made in the proper exercise of its functions, the relevant jurisdictional prerequisites had been satisfied, the amended development application could be approved having regard to s 4.15(1)(b)–(e) of the Environmental Planning and Assessment Act 1979, and approval was in the public interest, the Court was required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with the parties' agreement by upholding the appeal and granting consent subject to conditions.

Jurisdiction
Australia
Judgment Date
02 July 2024
Procedural Posture
Class 1 Development Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of a Development Application / Orders Following S 34 Conciliation Conference and Agreement Between the Parties
Outcome
Appeal upheld; amended development application approved subject to conditions in Annexure A.
Legal Topics
['development Appeal' 'centre Based Child Care Facility' 'conciliation Conference Agreement' 'jurisdictional Prerequisites' 'deferred Commencement Consent' 'environmental Planning Instruments']
['planning and Environment Law' 'development Consent'] ['development Appeal' 'centre Based Child Care Facility' 'conciliation Conference Agreement' 'jurisdictional Prerequisites' 'deferred Commencement Consent' 'environmental Planning Instruments']

Case Brief

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Procedural Posture

Class 1 Development Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of a Development Application / Orders Following S 34 Conciliation Conference and Agreement Between the Parties

Legal Issues

  1. 1 ["Whether the parties' agreement under s 34 of the Land and Environment Court Act 1979 was a decision that the Court could have made in the proper exercise of its functions." 'Whether the jurisdictional prerequisites for granting development consent under s 4.16 of the Environmental Planning and Assessment Act 1979 were satisfied.' 'Whether the amended development application should be approved subject to conditions, including deferred commencement conditions for a drainage easement.' 'Whether the amended development application satisfied relevant requirements under the Liverpool Local Environmental Plan 2008, applicable State Environmental Planning Policies, the Education and Care Services National Regulations 2011, the Child Care Planning Guideline 2021 and Liverpool Development Control Plan 2008.']

Ratio Decidendi

Because the parties' agreed decision was a decision the Court could have made in the proper exercise of its functions, the relevant jurisdictional prerequisites had been satisfied, the amended development application could be approved having regard to s 4.15(1)(b)–(e) of the Environmental Planning and Assessment Act 1979, and approval was in the public interest, the Court was required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with the parties' agreement by upholding the appeal and granting consent subject to conditions.

Court Disposition

Appeal upheld; amended development application approved subject to conditions in Annexure A.

Orders

  • ['The appeal is upheld.' 'Development Application DA-1179/2022 as amended for the demolition of existing buildings, tree removal, and the construction of a child care centre with basement parking, drainage and landscaping at 62-64 Flowerdale Road, Liverpool 2170, on land legally described as Lot 7 DP 22473 and Lot B...