Fyve Developments Pty Ltd v Sutherland Shire Council [2023] NSWLEC 1435

Fyve Developments Pty Ltd v Sutherland Shire Council [2023] NSWLEC 1435

The Court was satisfied that the parties' agreement was a decision the Court could have made because the amended development application was permissible with consent, relevant statutory and planning controls had been considered and satisfied or adequately addressed, the cl 4.6 written request justified the limited height exceedance, the development was consistent with the objectives of the height standard and R4 High Density Residential Zone, and no public interest issue warranted refusal. Accordingly, s 34(3) required the proceedings to be disposed of in accordance with the parties' decision.

Jurisdiction
Australia
Judgment Date
09 August 2023
Procedural Posture
Class 1 Development Appeal Against Deemed Refusal of Development Application Da22/0890 / Orders Made Following S 34 Conciliation Conference and Signed Agreement
Outcome
Appeal upheld and development consent granted subject to conditions; cl 4.6 height variation request upheld; Applicant ordered to pay agreed costs thrown away.
Legal Topics
['development Appeal' 'residential Flat Building' 'clause 4.6 Variation to Height of Buildings Development Standard' 'site Isolation' 'conciliation Conference Agreement' 'costs Thrown Away by Amendment of Development Application']
['planning and Environment' 'development Consent' 'land and Environment Court Procedure'] ['development Appeal' 'residential Flat Building' 'clause 4.6 Variation to Height of Buildings Development Standard' 'site Isolation' 'conciliation Conference Agreement' 'costs Thrown Away by Amendment of Development Application']

Case Brief

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Procedural Posture

Class 1 Development Appeal Against Deemed Refusal of Development Application Da22/0890 / Orders Made Following S 34 Conciliation Conference and Signed Agreement

Legal Issues

  1. 1 ["Whether the parties' s 34 agreement was a decision the Court could have made in the proper exercise of its functions." 'Whether the amended development application satisfied relevant jurisdictional prerequisites under applicable environmental planning instruments and legislation.' 'Whether the written request under cl 4.6 of the Sutherland Shire Local Environmental Plan 2015 justified variation of the height of buildings development standard in cl 4.3.' 'Whether public interest considerations warranted refusal of the amended development application.']

Ratio Decidendi

The Court was satisfied that the parties' agreement was a decision the Court could have made because the amended development application was permissible with consent, relevant statutory and planning controls had been considered and satisfied or adequately addressed, the cl 4.6 written request justified the limited height exceedance, the development was consistent with the objectives of the height standard and R4 High Density Residential Zone, and no public interest issue warranted refusal. Accordingly, s 34(3) required the proceedings to be disposed of in accordance with the parties' decision.

Court Disposition

Appeal upheld and development consent granted subject to conditions; cl 4.6 height variation request upheld; Applicant ordered to pay agreed costs thrown away.

Orders

  • ["The Applicant shall pay the Respondent's costs thrown away by reason of the amendment of the development application pursuant to s 8.15(3) Environmental Planning and Assessment Act 1979 in the agreed sum of $12,000 within 28 days of the date of this order." "The Applicant's written request prepared by Planning...