Kermani v Ku-ring-gai Council [2020] NSWLEC 1219

Kermani v Ku-ring-gai Council [2020] NSWLEC 1219

Because the proposed centre based child care facility was permissible with consent, did not contravene any development standard in Ku-ring-gai Local Environmental Plan 2015, satisfied the relevant heritage, biodiversity, stormwater, contamination, child care planning and classified road requirements, and the parties' agreed decision was one the Court could have made in the proper exercise of its functions, s 34(3) of the Land and Environment Court Act 1979 required the Court to dispose of the proceedings in accordance with the agreement and approve the application subject to conditions.

Jurisdiction
Australia
Judgment Date
19 May 2020
Procedural Posture
Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of Development Application No Da0313/18 / Orders Made Following a Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979 and Agreement Between the Parties
Outcome
The appeal is upheld and Development Application DA0313/18 is approved subject to conditions in Annexure A.
Legal Topics
['development Application' 'centre Based Child Care Facility' 'deemed Refusal' 'conciliation Conference' 'agreement Between the Parties' 'jurisdictional Prerequisites' 'local Environmental Plan' 'state Environmental Planning Policies']
['environmental Planning and Assessment' 'land and Environment' 'development Consent'] ['development Application' 'centre Based Child Care Facility' 'deemed Refusal' 'conciliation Conference' 'agreement Between the Parties' 'jurisdictional Prerequisites' 'local Environmental Plan' 'state Environmental Planning Policies']

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Procedural Posture

Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of Development Application No Da0313/18 / Orders Made Following a Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979 and Agreement Between the Parties

Legal Issues

  1. 1 ["Whether the parties' agreed decision to approve Development Application No DA0313/18 was a decision the Court could have made in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979." 'Whether the jurisdictional prerequisites for granting consent under the Environmental Planning and Assessment Act 1979 and relevant environmental planning instruments were satisfied.' 'Whether the proposed centre-based child care facility was permissible with consent and acceptable having regard to heritage, biodiversity, stormwater, contamination, child care planning and classified road considerations.']

Ratio Decidendi

Because the proposed centre based child care facility was permissible with consent, did not contravene any development standard in Ku-ring-gai Local Environmental Plan 2015, satisfied the relevant heritage, biodiversity, stormwater, contamination, child care planning and classified road requirements, and the parties' agreed decision was one the Court could have made in the proper exercise of its functions, s 34(3) of the Land and Environment Court Act 1979 required the Court to dispose of the proceedings in accordance with the agreement and approve the application subject to conditions.

Court Disposition

The appeal is upheld and Development Application DA0313/18 is approved subject to conditions in Annexure A.

Orders

  • ['The appeal is upheld.' 'Development application DA0313/18 for the demolition of existing structures, construction of a childcare centre with basement car parking and associated works is approved subject to the conditions in Annexure A.']