Forte Burwood Developments Pty Ltd v Burwood Council [2024] NSWLEC 1205

Forte Burwood Developments Pty Ltd v Burwood Council [2024] NSWLEC 1205

The Court was satisfied that the amended development application met the relevant jurisdictional prerequisites, that the cl 4.6 request adequately justified variation of the height standard, and that the parties' agreed decision to grant consent subject to conditions was a decision the Court could have made in the proper exercise of its functions; the proceedings therefore had to be disposed of in accordance with that agreement.

Jurisdiction
Australia
Judgment Date
19 April 2024
Procedural Posture
Class 1 Appeal Against Deemed Refusal of Development Application DA 10.2023.63.1 / Section 34 Conciliation Conference Agreement and Principal Judgment
Outcome
Appeal upheld; Development Application DA 10.2023.63.1 granted consent subject to conditions in Annexure A; cl 4.6 written request upheld; Applicant to pay Respondent's costs thrown away as agreed or assessed.
Legal Topics
['development Application' 'deemed Refusal Appeal' 'mixed Use Development' 'variation of Development Standard' 'height of Buildings Development Standard' 'conciliation Conference' 'development Consent']
['planning and Environment Law'] ['development Application' 'deemed Refusal Appeal' 'mixed Use Development' 'variation of Development Standard' 'height of Buildings Development Standard' 'conciliation Conference' 'development Consent']

Case Brief

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Procedural Posture

Class 1 Appeal Against Deemed Refusal of Development Application DA 10.2023.63.1 / Section 34 Conciliation Conference Agreement and Principal Judgment

Legal Issues

  1. 1 ["Whether the Court could dispose of the proceedings in accordance with the parties' agreement under s 34(3) of the Land and Environment Court Act 1979." 'Whether Development Application DA 10.2023.63.1 should be granted consent under ss 4.15 and 4.16 of the Environmental Planning and Assessment Act 1979.' 'Whether the cl 4.6 written request justified variation of the cl 4.3 height of buildings development standard in the Burwood Local Environmental Plan 2012.' 'Whether jurisdictional prerequisites under relevant environmental planning instruments and regulations were satisfied.']

Ratio Decidendi

The Court was satisfied that the amended development application met the relevant jurisdictional prerequisites, that the cl 4.6 request adequately justified variation of the height standard, and that the parties' agreed decision to grant consent subject to conditions was a decision the Court could have made in the proper exercise of its functions; the proceedings therefore had to be disposed of in accordance with that agreement.

Court Disposition

Appeal upheld; Development Application DA 10.2023.63.1 granted consent subject to conditions in Annexure A; cl 4.6 written request upheld; Applicant to pay Respondent's costs thrown away as agreed or assessed.

Orders

  • ["The Applicant is to pay the Respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed." 'The cl 4.6 written request, prepared by Daintry Associates, dated 4 March 2024, pursuant to cl 4.6 of the Burwood Local Environmental Plan 2012 and seeking...