Gavancorp Pty Limited v Waverley Council [2022] NSWLEC 1396

Gavancorp Pty Limited v Waverley Council [2022] NSWLEC 1396

The Court made orders giving effect to the parties' s 34 agreement because the Commissioner was satisfied that the agreed grant of development consent was a decision the Court could make in the proper exercise of its functions: the boarding house use was permissible, relevant WLEP height and floor space ratio standards were complied with, heritage and earthworks considerations had been addressed, the SEPP ARH applied and relevant criteria were met, the clause 4.6 request adequately justified non-compliance with the motorcycle parking standard, contamination was unlikely, and traffic noise matters under SEPP (Transport and Infrastructure) 2021 had been considered.

Jurisdiction
Australia
Judgment Date
21 July 2022
Procedural Posture
Class 1 Appeal Concerning a Development Application Deemed Refused Under S 8.7 of the Environmental Planning and Assessment Act 1979 / Orders Made Following a Conciliation Conference Under S 34 of the Land and Environment Court Act 1979 and Agreement Between the Parties
Outcome
Appeal upheld; clause 4.6 written request upheld; development consent granted subject to conditions.
Legal Topics
['development Consent' 'boarding House Development' 'clause 4.6 Variation Request' 'conciliation Conference' 'jurisdictional Preconditions' 'heritage Impact' 'motorcycle Parking Development Standard']
['planning and Development' 'environmental Law' 'heritage Conservation'] ['development Consent' 'boarding House Development' 'clause 4.6 Variation Request' 'conciliation Conference' 'jurisdictional Preconditions' 'heritage Impact' 'motorcycle Parking Development Standard']

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Procedural Posture

Class 1 Appeal Concerning a Development Application Deemed Refused Under S 8.7 of the Environmental Planning and Assessment Act 1979 / Orders Made Following a Conciliation Conference Under S 34 of the Land and Environment Court Act 1979 and Agreement Between the Parties

Legal Issues

  1. 1 ["Whether the Court could make consent orders giving effect to the parties' agreement under s 34(3) of the Land and Environment Court Act 1979." 'Whether development consent should be granted for substantial alterations and additions to the existing building and construction of a part two storey, part five storey boarding house at 5 Grafton Street, Bondi Junction.' 'Whether the written request under clause 4.6 of the Waverley Local Environmental Plan 2012 justified variation of the motorcycle parking development standard in clause 30(1)(h) of State Environmental Planning Policy (Affordable Rental Housing) 2009.' 'Whether applicable jurisdictional preconditions, including permissibility, development standards, heritage, earthworks, affordable rental housing, contamination, and traffic noise considerations, were satisfied.']

Ratio Decidendi

The Court made orders giving effect to the parties' s 34 agreement because the Commissioner was satisfied that the agreed grant of development consent was a decision the Court could make in the proper exercise of its functions: the boarding house use was permissible, relevant WLEP height and floor space ratio standards were complied with, heritage and earthworks considerations had been addressed, the SEPP ARH applied and relevant criteria were met, the clause 4.6 request adequately justified non-compliance with the motorcycle parking standard, contamination was unlikely, and traffic noise matters under SEPP (Transport and Infrastructure) 2021 had been considered.

Court Disposition

Appeal upheld; clause 4.6 written request upheld; development consent granted subject to conditions.

Orders

  • ['The written request prepared by Planning Ingenuity dated 13 May 2022, pursuant to clause 4.6 of the Waverley Local Environmental Plan 2012, to vary the development standard in clause 30(1)(h) of State Environmental Planning Policy (Affordable Rental Housing) 2009, is upheld.' 'The Appeal is upheld.' 'Development...