Zhang v Georges River Council [2020] NSWLEC 1625

Zhang v Georges River Council [2020] NSWLEC 1625

The Court could make orders approving both development applications because the parties reached agreement at the s 34 conciliation conference and the Commissioner was satisfied that the agreed grants of consent, subject to conditions, were decisions the Court could make in the proper exercise of its functions: the proposed secondary dwelling use was permissible, BASIX and contamination requirements had been addressed, no other applicable development standards were breached, and the Clause 4.6 requests adequately justified the floor area contravention.

Jurisdiction
Australia
Judgment Date
10 December 2020
Procedural Posture
Class 1 Appeals Under S 8.7 of the Environmental Planning and Assessment Act 1979 Concerning Two Refused Development Applications / Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979; Agreement Reached and Final Orders Made
Outcome
Appeals upheld; development applications approved subject to conditions.
Legal Topics
['development Applications' 'secondary Dwellings' 'development Consent' 'conciliation Conference' 'clause 4.6 Variation' 'floor Space Ratio' 'contaminated Land' 'basix Certificate']
['environmental Planning and Development' 'land and Environment Court Proceedings'] ['development Applications' 'secondary Dwellings' 'development Consent' 'conciliation Conference' 'clause 4.6 Variation' 'floor Space Ratio' 'contaminated Land' 'basix Certificate']

Case Brief

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Procedural Posture

Class 1 Appeals Under S 8.7 of the Environmental Planning and Assessment Act 1979 Concerning Two Refused Development Applications / Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979; Agreement Reached and Final Orders Made

Legal Issues

  1. 1 ['Whether development consent should be granted for the use of existing outbuildings as secondary dwellings at 25A William Road, Riverwood and 25 William Road, Riverwood.' "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 jurisdictional prerequisites for consent were satisfied, including permissibility in the R2 Low Density Residential zone, BASIX requirements, contamination consideration, and compliance with applicable development standards except for the identified floor area breach.' 'Whether the Clause 4.6 variation requests justified contravention of the maximum floor area development standard applying through cl 22(3)(a) of State Environmental Planning Policy (Affordable Rental Housing) 2009 and cl 6.5 of the Hurstville Local Environmental Plan 2012.']

Ratio Decidendi

The Court could make orders approving both development applications because the parties reached agreement at the s 34 conciliation conference and the Commissioner was satisfied that the agreed grants of consent, subject to conditions, were decisions the Court could make in the proper exercise of its functions: the proposed secondary dwelling use was permissible, BASIX and contamination requirements had been addressed, no other applicable development standards were breached, and the Clause 4.6 requests adequately justified the floor area contravention.

Court Disposition

Appeals upheld; development applications approved subject to conditions.

Orders

  • ['In proceedings 2020/240320, leave is granted for the Applicant to rely on the amended and additional plans and materials as listed in the conditions of consent at Annexure A.' 'In proceedings 2020/240320, the Clause 4.6 variation application in relation to the total floor area of the primary and secondary...