HMR Developments Pty Ltd v Ku-ring-gai Council [2020] NSWLEC 1001

HMR Developments Pty Ltd v Ku-ring-gai Council [2020] NSWLEC 1001

Because the parties reached an agreement under s 34(3) of the Land and Environment Court Act 1979 and the Commissioner was satisfied that the agreed decision was one the Court could make in the proper exercise of its functions, including satisfaction as to owner consent, Rural Fire Service General Terms of Approval, notification, contamination, permissibility, accessibility, SEPP HSPD standards and the clause 4.6 variation request, the Court was required to dispose of the proceedings in accordance with the parties' agreement and grant consent subject to conditions.

Jurisdiction
Australia
Judgment Date
07 January 2020
Procedural Posture
Class 1 Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of Development Application Da/0263/18 / Final Orders Following Agreement at a Conciliation Conference Under S 34(3) of the Land and Environment Court Act 1979
Outcome
Appeal upheld; amended development application approved subject to conditions.
Legal Topics
['development Application' 'seniors Living Development' 'conciliation Conference' 'clause 4.6 Variation Request' 'building Height Development Standard' 'deemed Refusal Appeal']
['planning and Environment Law'] ['development Application' 'seniors Living Development' 'conciliation Conference' 'clause 4.6 Variation Request' 'building Height Development Standard' 'deemed Refusal Appeal']

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Procedural Posture

Class 1 Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of Development Application Da/0263/18 / Final Orders Following Agreement at a Conciliation Conference Under S 34(3) of the Land and Environment Court Act 1979

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 development consent should be granted to the amended development application subject to conditions' 'Whether the written request under clause 4.6 of the Ku-ring-gai Local Environmental Plan 2015 justified variation of the building height requirement in clause 40(4)(c) of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004']

Ratio Decidendi

Because the parties reached an agreement under s 34(3) of the Land and Environment Court Act 1979 and the Commissioner was satisfied that the agreed decision was one the Court could make in the proper exercise of its functions, including satisfaction as to owner consent, Rural Fire Service General Terms of Approval, notification, contamination, permissibility, accessibility, SEPP HSPD standards and the clause 4.6 variation request, the Court was required to dispose of the proceedings in accordance with the parties' agreement and grant consent subject to conditions.

Court Disposition

Appeal upheld; amended development application approved subject to conditions.

Orders

  • ['The Applicant is granted leave to amend the development application and rely on the amended plans referred to in Condition 1 of Annexure A to this judgment.' 'The written request made, pursuant to clause 4.6 of the Ku-ring-gai Local Environmental Plan 2015, to vary the requirements of the building height located...