Evergordon Pty Ltd v Ku-ring-gai Council [2020] NSWLEC 1313

Evergordon Pty Ltd v Ku-ring-gai Council [2020] NSWLEC 1313

The Commissioner was satisfied that the agreed decision was one the Court could make in the proper exercise of its functions because relevant statutory and planning controls had been considered, the amended shop top housing proposal was permissible with consent in the B4 Mixed Use zone, applicable SEPP and LEP requirements and preconditions were addressed, the clause 4.6 written request justified the height variation, and no jurisdictional impediment to the orders was identified. The proceedings were therefore disposed of in accordance with the parties' s 34(3) agreement by upholding the appeal and approving the development application subject to conditions.

Jurisdiction
Australia
Judgment Date
22 July 2020
Procedural Posture
Class 1 Development Application Appeal Against Deemed Refusal / Final Orders Following Conciliation Conference and Agreement Under S 34(3) of the Land and Environment Court Act 1979
Outcome
Appeal upheld; Development Application DA0316/19 approved subject to conditions in Annexure A.
Legal Topics
['development Application' 'conciliation Conference' 'shop Top Housing' 'variation to Maximum Height Development Standard' 'affordable Rental Housing' 'development Consent Conditions']
['planning and Environment Law'] ['development Application' 'conciliation Conference' 'shop Top Housing' 'variation to Maximum Height Development Standard' 'affordable Rental Housing' 'development Consent Conditions']

Case Brief

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Procedural Posture

Class 1 Development Application Appeal Against Deemed Refusal / Final Orders Following Conciliation Conference and Agreement Under S 34(3) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the Court could make orders in accordance with the parties' agreement under s 34(3) of the Land and Environment Court Act 1979." 'Whether development consent could be granted for alterations and additions to a shop top housing development at 900 Pacific Highway, Gordon.' "Whether the Applicant's clause 4.6 written request justified variation of the maximum height of buildings development standard in clause 4.3 of the Ku-ring-gai Local Environmental Plan (Local Centres) 2012." 'Whether relevant environmental planning instruments and statutory preconditions had been considered or satisfied.']

Ratio Decidendi

The Commissioner was satisfied that the agreed decision was one the Court could make in the proper exercise of its functions because relevant statutory and planning controls had been considered, the amended shop top housing proposal was permissible with consent in the B4 Mixed Use zone, applicable SEPP and LEP requirements and preconditions were addressed, the clause 4.6 written request justified the height variation, and no jurisdictional impediment to the orders was identified. The proceedings were therefore disposed of in accordance with the parties' s 34(3) agreement by upholding the appeal and approving the development application subject to conditions.

Court Disposition

Appeal upheld; Development Application DA0316/19 approved subject to conditions in Annexure A.

Orders

  • ['The Applicant is granted leave to amend the development application and rely upon the following plans in the proceedings referred to at Condition 1 in Annexure A.' "The Applicant is to pay the Respondent's s8.15(3) costs thrown away in the proceeding as agreed or assessed." "The Applicant's written request dated...