Emag Apartments Pty Ltd v Inner West Council [2022] NSWLEC 1018

Emag Apartments Pty Ltd v Inner West Council [2022] NSWLEC 1018

Because the Court was satisfied that the relevant jurisdictional prerequisites were met, that the cl 4.6 written request adequately justified the floor space ratio contravention, and that the parties' agreed decision was one the Court could have made in the proper exercise of its functions, s 34(3) required the proceedings to be disposed of in accordance with the parties' agreement by upholding the appeal and granting development consent subject to conditions.

Jurisdiction
Australia
Judgment Date
14 January 2022
Procedural Posture
Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of Development Application No. Da/2021/0263 / Orders Following S 34 Conciliation Conference and Agreement of the Parties
Outcome
Appeal upheld; clause 4.6 variation request upheld; development consent granted subject to conditions; applicant to pay agreed costs thrown away.
Legal Topics
['development Application Appeal' 'conciliation Conference' 'clause 4.6 Variation Request' 'floor Space Ratio Development Standard' 'boarding House and Pub Mixed Use Development' 'heritage Impact' 'remediation of Land' 'traffic and Aircraft Noise']
['planning and Environment' 'development Consent' 'land and Environment Court Procedure'] ['development Application Appeal' 'conciliation Conference' 'clause 4.6 Variation Request' 'floor Space Ratio Development Standard' 'boarding House and Pub Mixed Use Development' 'heritage Impact' 'remediation of Land' 'traffic and Aircraft Noise']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of Development Application No. Da/2021/0263 / Orders Following S 34 Conciliation Conference and Agreement of the Parties

Legal Issues

  1. 1 ["Whether the parties' agreed 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 jurisdictional prerequisites for granting development consent to DA/2021/0263 were satisfied.' 'Whether the written request under cl 4.6 of the Marrickville Local Environmental Plan 2011 justified contravention of the floor space ratio development standard in cl 4.4.' 'Whether development consent should be granted for demolition, alterations and additions to create a mixed-use development comprising a pub and a boarding house.']

Ratio Decidendi

Because the Court was satisfied that the relevant jurisdictional prerequisites were met, that the cl 4.6 written request adequately justified the floor space ratio contravention, and that the parties' agreed decision was one the Court could have made in the proper exercise of its functions, s 34(3) required the proceedings to be disposed of in accordance with the parties' agreement by upholding the appeal and granting development consent subject to conditions.

Court Disposition

Appeal upheld; clause 4.6 variation request upheld; development consent granted subject to conditions; applicant to pay agreed costs thrown away.

Orders

  • ['The applicant is to pay the respondents costs thrown away in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $10,200.00.' 'The request pursuant to clause 4.6 of the Marrickville Local Environmental Plan to vary the development standard for Floor Space Ratio...