Lim v North Sydney Council [2021] NSWLEC 1531

Lim v North Sydney Council [2021] NSWLEC 1531

The agreed decision to uphold the appeal and grant consent subject to conditions was one the Court could make in the proper exercise of its functions because the jurisdictional requirements identified by the parties were satisfied: contamination risk was not identified, an updated BASIX Certificate was provided, no Sydney Harbour Catchment concerns arose, the proposal was permissible in the R2 Low Density zone, no development standards were contravened, heritage and earthworks matters were considered, and public submissions had been considered with objectors' concerns addressed by amendments.

Jurisdiction
Australia
Judgment Date
14 September 2021
Procedural Posture
Class 1 Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application Da9/2021 / Mandatory Conciliation Conference Under S 34 Aa(2)(a) of the Land and Environment Court Act 1979; Agreement Reached Under S 34(3)
Outcome
Appeal upheld; development application approved subject to conditions in Annexure A.
Legal Topics
['development Application Appeal' 'conciliation Conference' 'alterations and Additions to Dwelling' 'heritage Conservation Area' 'basix' 'remediation of Land' 'sydney Harbour Catchment' 'earthworks' 'public Submissions']
['planning and Environment Law' 'development Control'] ['development Application Appeal' 'conciliation Conference' 'alterations and Additions to Dwelling' 'heritage Conservation Area' 'basix' 'remediation of Land' 'sydney Harbour Catchment' 'earthworks' 'public Submissions']

Case Brief

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Procedural Posture

Class 1 Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application Da9/2021 / Mandatory Conciliation Conference Under S 34 Aa(2)(a) of the Land and Environment Court Act 1979; Agreement Reached Under S 34(3)

Legal Issues

  1. 1 ['Whether the agreed decision to uphold the appeal and grant development consent subject to conditions was one the Court could make in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979.' 'Whether relevant planning controls and jurisdictional requirements, including remediation, BASIX, Sydney Harbour Catchment, zoning, heritage, earthworks and public submissions, were satisfied.']

Ratio Decidendi

The agreed decision to uphold the appeal and grant consent subject to conditions was one the Court could make in the proper exercise of its functions because the jurisdictional requirements identified by the parties were satisfied: contamination risk was not identified, an updated BASIX Certificate was provided, no Sydney Harbour Catchment concerns arose, the proposal was permissible in the R2 Low Density zone, no development standards were contravened, heritage and earthworks matters were considered, and public submissions had been considered with objectors' concerns addressed by amendments.

Court Disposition

Appeal upheld; development application approved subject to conditions in Annexure A.

Orders

  • ['The appeal is upheld.' 'Development Application No. DA9/21 for the construction of alterations and additions to an existing dwelling, removal of existing shed in rear yard, construction of bi-fold gates at rear frontage, and associated works at 46 Burlington Street, Crows Nest is approved subject to the conditions...