Pemberton v North Sydney Council [2022] NSWLEC 1592

Pemberton v North Sydney Council [2022] NSWLEC 1592

The Court was satisfied that the amended development application met the relevant jurisdictional preconditions, that the clause 4.6 written request adequately justified the height contravention by demonstrating achievement of the height standard objectives and sufficient environmental planning grounds, and that the development was in the public interest and consistent with the relevant zone objectives. Because the parties' agreed decision was one the Court could make in the proper exercise of its functions, s 34(3) required the proceedings to be disposed of in accordance with that agreement.

Jurisdiction
Australia
Judgment Date
26 October 2022
Procedural Posture
Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Mandatory Conciliation Conference Under S 34 Aa(2)(a) of the Land and Environment Court Act 1979; Agreement Reached Under S 34(3)
Outcome
Appeal upheld; development application approved subject to conditions of consent in Annexure A.
Legal Topics
['development Application Appeal' 'conciliation Conference Agreement' 'clause 4.6 Variation Request' 'maximum Building Height Development Standard' 'heritage Item' 'residential Alterations and Additions']
['planning and Environment' 'development Consent' 'land and Environment Court Proceedings'] ['development Application Appeal' 'conciliation Conference Agreement' 'clause 4.6 Variation Request' 'maximum Building Height Development Standard' 'heritage Item' 'residential Alterations and Additions']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Mandatory Conciliation Conference Under S 34 Aa(2)(a) of the Land and Environment Court Act 1979; Agreement Reached Under S 34(3)

Legal Issues

  1. 1 ["Whether the Court could make orders giving effect to the parties' agreement under s 34(3) of the Land and Environment Court Act 1979." 'Whether the clause 4.6 written request justified contravention of the maximum building height development standard in cl 4.3 of the North Sydney Local Environmental Plan 2013.' 'Whether the proposed development was in the public interest because it was consistent with the objectives of the contravened development standard and the relevant zone.' 'Whether relevant jurisdictional preconditions and matters for consideration under the Environmental Planning and Assessment Act 1979 and applicable environmental planning instruments were satisfied.']

Ratio Decidendi

The Court was satisfied that the amended development application met the relevant jurisdictional preconditions, that the clause 4.6 written request adequately justified the height contravention by demonstrating achievement of the height standard objectives and sufficient environmental planning grounds, and that the development was in the public interest and consistent with the relevant zone objectives. Because the parties' agreed decision was one the Court could make in the proper exercise of its functions, s 34(3) required the proceedings to be disposed of in accordance with that agreement.

Court Disposition

Appeal upheld; development application approved subject to conditions of consent in Annexure A.

Orders

  • ['The clause 4.6 written request prepared by Ingham Planning dated October 2022 to vary the maximum height of buildings development standard in clause 4.3 of the North Sydney Local Environmental Plan 2013 is upheld.' 'The appeal is upheld.' 'Development Application No DA206/21 for alterations and additions to 8 and...