Hatzitoulousis v Bayside Council [2021] NSWLEC 1282

Hatzitoulousis v Bayside Council [2021] NSWLEC 1282

The Court was satisfied that the agreed proposed decision was one it could make in the proper exercise of its functions because the boarding house was permissible in the R4 zone, there was no non-compliance with applicable development standards or deemed-to-satisfy provisions, the amended plans satisfied cl 4.4C of Botany Bay Local Environmental Plan 2013, aircraft noise requirements could be met through conditions, the design was compatible with the local area, the site was suitable and not contaminated, an updated BASIX certificate had been provided, and no jurisdictional impediment was identified. The appeal was therefore upheld and development consent granted subject to the agreed...

Jurisdiction
Australia
Judgment Date
25 May 2021
Procedural Posture
Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application DA 2019 71 / Conciliation Conference; Parties Reached Agreement and Court Made Orders Under S 34 of the Land and Environment Court Act 1979
Outcome
Appeal upheld; development consent granted.
Legal Topics
['development Application' 'boarding House' 'conciliation' 'development Consent' 'local Environmental Plan' 'affordable Rental Housing' 'basix' 'remediation of Land' 'aircraft Noise']
['planning and Environment Law'] ['development Application' 'boarding House' 'conciliation' 'development Consent' 'local Environmental Plan' 'affordable Rental Housing' 'basix' 'remediation of Land' 'aircraft Noise']

Case Brief

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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 2019 71 / Conciliation Conference; Parties Reached Agreement and Court Made Orders Under S 34 of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the parties' agreed proposed 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 preconditions to granting development consent under s 4.16 of the Environmental Planning and Assessment Act 1979 were satisfied.' 'Whether the proposed boarding house complied with applicable controls under Botany Bay Local Environmental Plan 2013 and State Environmental Planning Policy (Affordable Rental Housing) 2009.' 'Whether the development satisfied cl 4.4C of Botany Bay Local Environmental Plan 2013 concerning amenity, setbacks, transition in building scale, compatibility with character, and objectives of cll 4.3 and 4.4B.' 'Whether aircraft noise requirements under cl 6.9(3)(c) of Botany Bay Local Environmental Plan 2013 and AS 2021—2000 were satisfied.' 'Whether the site was suitable having regard to State Environmental Planning Policy No 55—Remediation of Land.' 'Whether a BASIX certificate had been provided as required by State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.']

Ratio Decidendi

The Court was satisfied that the agreed proposed decision was one it could make in the proper exercise of its functions because the boarding house was permissible in the R4 zone, there was no non-compliance with applicable development standards or deemed-to-satisfy provisions, the amended plans satisfied cl 4.4C of Botany Bay Local Environmental Plan 2013, aircraft noise requirements could be met through conditions, the design was compatible with the local area, the site was suitable and not contaminated, an updated BASIX certificate had been provided, and no jurisdictional impediment was identified. The appeal was therefore upheld and development consent granted subject to the agreed...

Court Disposition

Appeal upheld; development consent granted.

Orders

  • ['Leave is granted to the Applicant to rely on the amended material listed in the orders.' "The applicant is to pay the Council's costs thrown away as a result of the amendment to the application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or as assessed." 'The appeal...