Emag Apartments Pty Ltd v Inner West Council [2020] NSWLEC 1104

Emag Apartments Pty Ltd v Inner West Council [2020] NSWLEC 1104

The Commissioner was satisfied that the relevant jurisdictional prerequisites to the grant of consent had been addressed, including zoning permissibility, heritage impact, local character, design statement requirements, remediation considerations, and the adequacy of the clause 4.6 written request for the height exceedance. The parties' agreed decision was therefore one the Court could have made in the proper exercise of its functions, requiring the proceedings to be disposed of in accordance with the agreement under s 34(3) of the Land and Environment Court Act 1979.

Jurisdiction
Australia
Judgment Date
10 March 2020
Procedural Posture
Class 1 Appeal Concerning a Development Application Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Application Da2019/61 / Orders Made Following Conciliation Conference and S 34 Agreement
Outcome
The appeal was upheld and development consent was granted subject to conditions.
Legal Topics
['development Application' 'affordable Rental Housing' 'boarding House Development' 'residential Apartment Development' 'conciliation Conference' 'clause 4.6 Variation' 'building Height Development Standard' 'development Consent']
['planning and Environment Law'] ['development Application' 'affordable Rental Housing' 'boarding House Development' 'residential Apartment Development' 'conciliation Conference' 'clause 4.6 Variation' 'building Height Development Standard' 'development Consent']

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Procedural Posture

Class 1 Appeal Concerning a Development Application Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Application Da2019/61 / Orders Made Following Conciliation Conference and S 34 Agreement

Legal Issues

  1. 1 ["Whether the parties' agreed decision was one that 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 jurisdictional prerequisites to the grant of development consent were satisfied, including zoning, heritage, local character, residential apartment design statement, land remediation, and the clause 4.6 request to vary the height standard.' 'Whether the written request under clause 4.6 of the Ashfield Local Environmental Plan 2013 adequately justified contravention of the height development standard in clause 4.3.']

Ratio Decidendi

The Commissioner was satisfied that the relevant jurisdictional prerequisites to the grant of consent had been addressed, including zoning permissibility, heritage impact, local character, design statement requirements, remediation considerations, and the adequacy of the clause 4.6 written request for the height exceedance. The parties' agreed decision was therefore one the Court could have made in the proper exercise of its functions, requiring the proceedings to be disposed of in accordance with the agreement under s 34(3) of the Land and Environment Court Act 1979.

Court Disposition

The appeal was upheld and development consent was granted subject to conditions.

Orders

  • ['Leave is granted to the Applicant to amend the development application and rely on the amended plans listed in Condition 4 of Annexure A.' "The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application in the amount of $9,000 payable within 28 days of this agreement."...