Ghazi Al Ali Architect Pty Ltd v City of Canada Bay Council [2019] NSWLEC 1573

Ghazi Al Ali Architect Pty Ltd v City of Canada Bay Council [2019] NSWLEC 1573

The amended development application and supporting documents satisfied the relevant planning controls and jurisdictional prerequisites, including the requirements for a clause 4.6 variation to the height standard, and there were no jurisdictional impediments to the parties' agreement; because the agreed decision was one the Court could have made in the proper exercise of its functions, the Court was required to dispose of the proceedings in accordance with that agreement and grant consent subject to conditions.

Jurisdiction
Australia
Judgment Date
22 November 2019
Procedural Posture
Class 1 Appeal Against a Deemed Refusal of Development Application DA 2018/0286 Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 / Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979; Orders Made by Agreement Under S 34(3)
Outcome
Appeal upheld; development application DA 2018/0286 approved subject to conditions; clause 4.6 written request upheld.
Legal Topics
['development Application' 'boarding House' 'height Development Standard Non Compliance' 'clause 4.6 Written Request' 'conciliation Conference' 'consent Orders']
['planning and Environment' 'development Consent'] ['development Application' 'boarding House' 'height Development Standard Non Compliance' 'clause 4.6 Written Request' 'conciliation Conference' 'consent Orders']

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Procedural Posture

Class 1 Appeal Against a Deemed Refusal of Development Application DA 2018/0286 Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 / Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979; Orders Made by Agreement Under S 34(3)

Legal Issues

  1. 1 ["Whether the Court could dispose of the proceedings in accordance with the parties' agreement under s 34(3) of the Land and Environment Court Act 1979" 'Whether the amended development application satisfied the relevant planning controls and jurisdictional prerequisites under s 4.15(1) of the Environmental Planning and Assessment Act 1979' 'Whether the written request under clause 4.6 of Canada Bay Local Environmental Plan 2013 justified contravention of the maximum height development standard in clause 4.3']

Ratio Decidendi

The amended development application and supporting documents satisfied the relevant planning controls and jurisdictional prerequisites, including the requirements for a clause 4.6 variation to the height standard, and there were no jurisdictional impediments to the parties' agreement; because the agreed decision was one the Court could have made in the proper exercise of its functions, the Court was required to dispose of the proceedings in accordance with that agreement and grant consent subject to conditions.

Court Disposition

Appeal upheld; development application DA 2018/0286 approved subject to conditions; clause 4.6 written request upheld.

Orders

  • ["The Applicant is granted leave to rely on the amended plans and documentation referred to in condition 1 of the conditions of consent contained at Annexure 'A'." 'The Applicant is to pay those costs of the Respondent thrown away as a result of the amendment of the development application, pursuant to s 8.15(3) of...