Sitou v Burwood Council [2022] NSWLEC 1420

Sitou v Burwood Council [2022] NSWLEC 1420

Because the parties agreed to grant consent subject to conditions, no jurisdictional prerequisite prevented the Court acting under s 34(3), and the cl 4.6 written request adequately justified the 9.6% floor space ratio exceedance on environmental planning grounds, the agreed decision was one the Court could make in the proper exercise of its functions and the proceedings had to be disposed of in accordance with the agreement.

Jurisdiction
Australia
Judgment Date
05 August 2022
Procedural Posture
Class 1 Development Application Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 / Final Orders Following Conciliation Conference Under S 34 Aa(2) of the Land and Environment Court Act 1979 and Agreement Between the Parties
Outcome
Appeal upheld; clause 4.6 floor space ratio variation upheld; development consent granted subject to conditions in Annexure A.
Legal Topics
['development Application' 'deemed Refusal Appeal' 'clause 4.6 Variation' 'floor Space Ratio' 'conciliation Conference' 'consent Orders']
['planning and Environment' 'development Consent'] ['development Application' 'deemed Refusal Appeal' 'clause 4.6 Variation' 'floor Space Ratio' 'conciliation Conference' 'consent Orders']

Case Brief

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Procedural Posture

Class 1 Development Application Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 / Final Orders Following Conciliation Conference Under S 34 Aa(2) of the Land and Environment Court Act 1979 and Agreement Between the Parties

Legal Issues

  1. 1 ["Whether the parties' agreed proposed decision was one 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 applicant's written request under cl 4.6 of the Burwood Local Environmental Plan 2012 justified variation of the floor space ratio development standard in cl 4.4." 'Whether Development Application No. DA99/2021 should be determined by grant of development consent subject to conditions.']

Ratio Decidendi

Because the parties agreed to grant consent subject to conditions, no jurisdictional prerequisite prevented the Court acting under s 34(3), and the cl 4.6 written request adequately justified the 9.6% floor space ratio exceedance on environmental planning grounds, the agreed decision was one the Court could make in the proper exercise of its functions and the proceedings had to be disposed of in accordance with the agreement.

Court Disposition

Appeal upheld; clause 4.6 floor space ratio variation upheld; development consent granted subject to conditions in Annexure A.

Orders

  • ["The Applicant's written request, pursuant to clause 4.6 of the Burwood Local Environmental Plan 2012, seeking a variation to the development standards for Floor Space Ratio is upheld." 'The appeal is upheld.' 'Development Application No. DA99/2021 for demolition of existing dwelling associated structures and...