Hone Constructions Pty Ltd v Bayside Council [2023] NSWLEC 1304

Hone Constructions Pty Ltd v Bayside Council [2023] NSWLEC 1304

Because the parties' agreed decision satisfied the relevant jurisdictional prerequisites, including owner consent, notification, integrated development requirements, permissibility under BLEP cl 6.9, compliance with relevant planning controls and SEPP requirements, and a justified cl 4.6 variation to the height standard, the decision to uphold the appeal and grant development consent subject to conditions was one the Court could have made in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979.

Jurisdiction
Australia
Judgment Date
16 June 2023
Procedural Posture
Class 1 Proceedings Arising From Deemed Refusal of Development Application 2021/463 / Orders Following Hearing and Conciliation Conference Under S 34 of the Land and Environment Court Act 1979
Outcome
Appeal upheld; cl 4.6 written request upheld; development consent granted; Applicant ordered to pay agreed thrown-away costs.
Legal Topics
['deemed Refusal Appeal' 'mixed Use Development' 'clause 4.6 Variation Request' 'height of Buildings Development Standard' 'conciliation Agreement' 'costs Thrown Away']
['environmental Planning and Assessment' 'development Consent' 'land and Environment Court Proceedings'] ['deemed Refusal Appeal' 'mixed Use Development' 'clause 4.6 Variation Request' 'height of Buildings Development Standard' 'conciliation Agreement' 'costs Thrown Away']

Case Brief

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Procedural Posture

Class 1 Proceedings Arising From Deemed Refusal of Development Application 2021/463 / Orders Following Hearing and Conciliation Conference Under S 34 of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the parties' agreed decision to uphold the appeal and grant development consent was one the Court could have made in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979." 'Whether the written request under cl 4.6 of Bayside Local Environmental Plan 2021 justified variation of the cl 4.3 height of buildings development standard.' 'Whether jurisdictional prerequisites for granting development consent to the amended development application were satisfied.']

Ratio Decidendi

Because the parties' agreed decision satisfied the relevant jurisdictional prerequisites, including owner consent, notification, integrated development requirements, permissibility under BLEP cl 6.9, compliance with relevant planning controls and SEPP requirements, and a justified cl 4.6 variation to the height standard, the decision to uphold the appeal and grant development consent subject to conditions was one the Court could have made in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979.

Court Disposition

Appeal upheld; cl 4.6 written request upheld; development consent granted; Applicant ordered to pay agreed thrown-away costs.

Orders

  • ['Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay those costs of the Respondent thrown away as a result of the Applicant being granted leave to file the Amended Development Application within 90 days of the date of these orders, which costs are agreed in the...