Haratzis v Mosman Municipal Council [2019] NSWLEC 1139

Haratzis v Mosman Municipal Council [2019] NSWLEC 1139

The Commissioner was satisfied that the agreed decision to grant leave to amend the development application and to grant development consent subject to conditions was a decision the Court could make in the proper exercise of its functions because the use was permissible in the R2 Low Density Residential zone, the cl 4.6 request justified the 5% floor space ratio breach, no further contamination consideration was required on the parties' agreed position, and conditions would secure BASIX commitments. The proceedings were therefore disposed of in accordance with the parties' agreement under s 34(3) of the Land and Environment Court Act 1979.

Jurisdiction
Australia
Judgment Date
02 April 2019
Procedural Posture
Class 1 Appeal Concerning a Development Application for Alterations and Additions to a Semi Detached Dwelling / Orders Made Following Agreement Reached at a Conciliation Conference Under S 34 of the Land and Environment Court Act 1979
Outcome
Appeal upheld and development consent granted subject to conditions.
Legal Topics
['development Application' 'alterations and Additions to Semi Detached Dwelling' 'conciliation Conference' 'agreement Between Parties' 'floor Space Ratio Development Standard' 'clause 4.6 Request' 'basix Conditions' 'remediation of Land']
['planning and Environment Law' 'development Consent'] ['development Application' 'alterations and Additions to Semi Detached Dwelling' 'conciliation Conference' 'agreement Between Parties' 'floor Space Ratio Development Standard' 'clause 4.6 Request' 'basix Conditions' 'remediation of Land']

Case Brief

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Procedural Posture

Class 1 Appeal Concerning a Development Application for Alterations and Additions to a Semi Detached Dwelling / Orders Made Following Agreement Reached at a Conciliation Conference Under S 34 of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether leave should be granted to amend the development application to rely on amended plans.' 'Whether development consent should be granted to the amended development application subject to conditions.' 'Whether the contravention of the floor space ratio development standard under cl 4.4 of the Mosman Local Environmental Plan 2012 should be upheld under cl 4.6.' 'Whether the Court could make the agreed decision in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979.']

Ratio Decidendi

The Commissioner was satisfied that the agreed decision to grant leave to amend the development application and to grant development consent subject to conditions was a decision the Court could make in the proper exercise of its functions because the use was permissible in the R2 Low Density Residential zone, the cl 4.6 request justified the 5% floor space ratio breach, no further contamination consideration was required on the parties' agreed position, and conditions would secure BASIX commitments. The proceedings were therefore disposed of in accordance with the parties' agreement under s 34(3) of the Land and Environment Court Act 1979.

Court Disposition

Appeal upheld and development consent granted subject to conditions.

Orders

  • ['The applicant is granted leave to amend the development application to rely upon the amended plans referred to in condition 1 of Annexure A.' 'The applicant is to pay those costs of the respondent that have been thrown away as a result of the amendment of the application for development consent, as agreed or...