Romano v Inner West Council [2020] NSWLEC 1393

Romano v Inner West Council [2020] NSWLEC 1393

Because the Commissioner was satisfied that the agreed development consent was a decision the Court could have made, including because the clause 4.6 requests adequately justified the site coverage and floor space ratio contraventions, the development was consistent with relevant objectives, did not cause unacceptable heritage or amenity impacts, and other relevant planning instruments were addressed, s 34(3) required the proceedings to be disposed of in accordance with the parties' agreement.

Jurisdiction
Australia
Judgment Date
28 August 2020
Procedural Posture
Class 1 Appeal Under S8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. D/2019/239 / Final Orders Following S34 AA Conciliation Conference and S34 Agreement
Outcome
Appeal upheld; development application approved subject to conditions.
Legal Topics
['development Application Appeal' 'clause 4.6 Variation Requests' 'site Coverage' 'floor Space Ratio' 'heritage Conservation Area Impacts' 'conciliation Agreement' 'dual Occupancy' 'strata Subdivision']
['planning and Environment' 'development Consent' 'heritage Conservation'] ['development Application Appeal' 'clause 4.6 Variation Requests' 'site Coverage' 'floor Space Ratio' 'heritage Conservation Area Impacts' 'conciliation Agreement' 'dual Occupancy' 'strata Subdivision']

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Procedural Posture

Class 1 Appeal Under S8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. D/2019/239 / Final Orders Following S34 AA Conciliation Conference and S34 Agreement

Legal Issues

  1. 1 ["Whether the parties' agreed 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 written request to vary the site coverage development standard in cl 4.3A(3)(b) of the Leichhardt Local Environmental Plan 2013 should be upheld under cl 4.6.' 'Whether the written request to vary the floor space ratio development standard in cl 4.4(2B)(b) of the Leichhardt Local Environmental Plan 2013 should be upheld under cl 4.6.' 'Whether the proposed development would adversely impact the Birchgrove and Ballast Point Road heritage conservation area.' 'Whether relevant planning considerations including earthworks, flooding, stormwater management, Sydney Harbour Catchment, land remediation and BASIX requirements were adequately addressed.']

Ratio Decidendi

Because the Commissioner was satisfied that the agreed development consent was a decision the Court could have made, including because the clause 4.6 requests adequately justified the site coverage and floor space ratio contraventions, the development was consistent with relevant objectives, did not cause unacceptable heritage or amenity impacts, and other relevant planning instruments were addressed, s 34(3) required the proceedings to be disposed of in accordance with the parties' agreement.

Court Disposition

Appeal upheld; development application approved subject to conditions.

Orders

  • ['The Applicant is granted leave to amend Development Application No. D/2019/239 and to rely upon the amended plans and documents included at Annexure A.' "The Applicant's written request to vary the site coverage development standard at clause 4.3A(3)(b) of the Leichhardt Local Environmental Plan 2013, made...