Helm No.18 Pty Ltd v North Sydney Council [2022] NSWLEC 1566

Helm No.18 Pty Ltd v North Sydney Council [2022] NSWLEC 1566

The Court was satisfied that the parties' agreed decision was one the Court could have made in the proper exercise of its functions: the amended DA was permissible with consent, owner consent and public submission matters had been addressed, relevant planning instruments and jurisdictional requirements were satisfied, and the cl 4.6 written request adequately justified the height variation because the proposal met the relevant R4 zone and height objectives and produced no material environmental impacts or additional overshadowing. Accordingly, the appeal was upheld and consent was granted subject to conditions.

Jurisdiction
Australia
Judgment Date
18 October 2022
Procedural Posture
Class 1 Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Application Da239/21 / Orders Following S 34 Conciliation Conference and Agreement Between the Parties
Outcome
Appeal upheld; leave granted to amend Development Application DA239/21; cl 4.6 written request upheld; development consent granted subject to conditions.
Legal Topics
['mixed Use Development' 'clause 4.6 Written Request' 'height of Buildings Development Standard' 'deemed Refusal Appeal' 'conciliation Agreement' 'stratum Subdivision']
['planning and Environment Law' 'development Consent'] ['mixed Use Development' 'clause 4.6 Written Request' 'height of Buildings Development Standard' 'deemed Refusal Appeal' 'conciliation Agreement' 'stratum Subdivision']

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Procedural Posture

Class 1 Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Application Da239/21 / Orders Following S 34 Conciliation Conference and Agreement Between the Parties

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 DA239/21 should be granted consent subject to conditions.' "Whether the Applicant's cl 4.6 written request adequately justified variation of the height of buildings development standard in cl 4.3 of the North Sydney Local Environmental Plan 2013." 'Whether relevant jurisdictional prerequisites and environmental planning instruments had been addressed.']

Ratio Decidendi

The Court was satisfied that the parties' agreed decision was one the Court could have made in the proper exercise of its functions: the amended DA was permissible with consent, owner consent and public submission matters had been addressed, relevant planning instruments and jurisdictional requirements were satisfied, and the cl 4.6 written request adequately justified the height variation because the proposal met the relevant R4 zone and height objectives and produced no material environmental impacts or additional overshadowing. Accordingly, the appeal was upheld and consent was granted subject to conditions.

Court Disposition

Appeal upheld; leave granted to amend Development Application DA239/21; cl 4.6 written request upheld; development consent granted subject to conditions.

Orders

  • ['Leave is granted to the Applicant to amend Development Application DA239/21 so as to not include demolition.' "The Applicant's written request, pursuant to cl 4.6 of the North Sydney Local Environmental Plan 2013 (NSLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the...