Fyve Developments Pty Ltd v Bayside Council [2024] NSWLEC 1209

Fyve Developments Pty Ltd v Bayside Council [2024] NSWLEC 1209

Because the amended development application was permissible with consent, satisfied the relevant jurisdictional requirements and planning controls, and the cl 4.6 written request adequately justified the minor height exceedance, the agreed decision to uphold the appeal and grant consent subject to conditions was a decision the Court could make under s 34(3) of the Land and Environment Court Act 1979.

Jurisdiction
Australia
Judgment Date
23 April 2024
Procedural Posture
Class 1 Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of Development Application DA 2022/416 / Orders Following S 34 Conciliation Conference and Agreement Between the Parties
Outcome
Appeal upheld; development consent granted to Development Application DA-2022/416 as amended, subject to conditions.
Legal Topics
['development Application' 'residential Apartment Building' 'clause 4.6 Written Request' 'height of Buildings Development Standard' 'section 34 Conciliation Conference' 'deemed Refusal Appeal' 'conditions of Consent']
['planning and Environment' 'development Consent' 'land and Environment Court Class 1 Proceedings'] ['development Application' 'residential Apartment Building' 'clause 4.6 Written Request' 'height of Buildings Development Standard' 'section 34 Conciliation Conference' 'deemed Refusal Appeal' 'conditions of Consent']

Case Brief

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Procedural Posture

Class 1 Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of Development Application DA 2022/416 / Orders Following S 34 Conciliation Conference and Agreement Between the Parties

Legal Issues

  1. 1 ["Whether the Court could dispose of the proceedings in accordance with the parties' agreed decision under s 34(3) of the Land and Environment Court Act 1979." 'Whether the jurisdictional prerequisites for granting consent to the amended development application were satisfied.' "Whether the Applicant's written request under cl 4.6 of the Bayside Local Environmental Plan 2021 adequately justified variation of the height of buildings development standard in cl 4.3." "Whether the amended development application satisfactorily addressed the Respondent's contentions, public submission issues, and relevant planning controls."]

Ratio Decidendi

Because the amended development application was permissible with consent, satisfied the relevant jurisdictional requirements and planning controls, and the cl 4.6 written request adequately justified the minor height exceedance, the agreed decision to uphold the appeal and grant consent subject to conditions was a decision the Court could make under s 34(3) of the Land and Environment Court Act 1979.

Court Disposition

Appeal upheld; development consent granted to Development Application DA-2022/416 as amended, subject to conditions.

Orders

  • ['Leave is granted to the Applicant to amend Development Application DA-2022/416 and rely upon the amended plans and documents referred to in condition 1 at Annexure A.' "Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a...