Freedom Development Group Pty Ltd v Sutherland Shire Council [2019] NSWLEC 1145

Freedom Development Group Pty Ltd v Sutherland Shire Council [2019] NSWLEC 1145

The Court was satisfied that the agreed decision was within the proper exercise of its functions because the amendment to create an integrated development over 391-393 Kingsway was responsive to Council's concerns and capable of being treated within the amendment power; the amended proposal addressed local character considerations, Infrastructure SEPP requirements, Sydney Trains concurrence, BASIX compliance, and necessary easements through conditions. Accordingly, the appeal could be upheld and consent granted subject to conditions.

Jurisdiction
Australia
Judgment Date
03 April 2019
Procedural Posture
Class 1 Development Appeal Against Deemed Refusal of Development Application Da18/0531 / Orders Made Following Conciliation Conference and Agreement Under S 34 of the Land and Environment Court Act 1979
Outcome
Appeal upheld; amended development application approved subject to conditions.
Legal Topics
['boarding Houses' 'development Application Amendment' 'conciliation Conference' 'affordable Rental Housing' 'infrastructure Concurrence' 'basix Compliance' 'costs Thrown Away']
['planning and Environment' 'development Consent'] ['boarding Houses' 'development Application Amendment' 'conciliation Conference' 'affordable Rental Housing' 'infrastructure Concurrence' 'basix Compliance' 'costs Thrown Away']

Case Brief

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Procedural Posture

Class 1 Development Appeal Against Deemed Refusal of Development Application Da18/0531 / Orders Made Following Conciliation Conference and Agreement Under S 34 of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether the amended development application, extending the development across 391 and 393 Kingsway, could reasonably be treated as the same application and amended under cl 55 of the Environmental Planning and Assessment Regulation 2000 and s 29(2) of the Land and Environment Court Act 1979.' "Whether the parties' agreed decision 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 requirements under State Environmental Planning Policy (Infrastructure) 2007, State Environmental Planning Policy (Affordable Rental Housing) 2009 and State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 were addressed.']

Ratio Decidendi

The Court was satisfied that the agreed decision was within the proper exercise of its functions because the amendment to create an integrated development over 391-393 Kingsway was responsive to Council's concerns and capable of being treated within the amendment power; the amended proposal addressed local character considerations, Infrastructure SEPP requirements, Sydney Trains concurrence, BASIX compliance, and necessary easements through conditions. Accordingly, the appeal could be upheld and consent granted subject to conditions.

Court Disposition

Appeal upheld; amended development application approved subject to conditions.

Orders

  • ['The Applicant is given leave to amend the development application and rely upon the plans listed at condition 1 in Annexure A.' 'The Applicant is to pay those costs of the Respondent thrown away as a result of amending the development application pursuant to section 8.15(3) of the Environmental Planning and...