IBT Investments Pty Ltd v Bayside Council [2021] NSWLEC 1246

IBT Investments Pty Ltd v Bayside Council [2021] NSWLEC 1246

The applicant’s cl 4.6 written request demonstrated that strict compliance with the 14m building height standard is unreasonable or unnecessary as the objectives of the control are achieved notwithstanding the minor exceedance, and sufficient environmental planning grounds exist to justify the contravention. As all tests under cl 4.6 of the BBLEP are satisfied and the development meets the applicable objectives, the Court is empowered to uphold the appeal and grant consent.

Parties
Applicant: IBT Investments Pty Ltd; Respondent: Bayside Council
Jurisdiction
Australia
Judgment Date
13 May 2021
Procedural Posture
Class 1 Appeal Under S 8.7(1) Environmental Planning and Assessment Act 1979 / Decision After Conciliation Conference and Agreement Between Parties
Outcome
Appeal upheld; development consent granted with conditions; costs order made against applicant as to costs thrown away from amended plans.
Legal Topics
Development Applications, Variation to Development Standards, Building Height Controls, Statutory Interpretation, Consent Orders
Planning and Environment Law Local Government Law Development Applications Variation to Development Standards Building Height Controls Statutory Interpretation Consent Orders

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Parties

IBT Investments Pty Ltd

Applicant

Bayside Council

Respondent

Procedural Posture

Class 1 Appeal Under S 8.7(1) Environmental Planning and Assessment Act 1979 / Decision After Conciliation Conference and Agreement Between Parties

Legal Issues

  1. 1 Whether leave should be granted to rely on amended plans and clause 4.6 written request
  2. 2 Whether the applicant has satisfied the requirements to justify variation to the development standard for building height under cl 4.6 of the Botany Bay Local Environmental Plan 2013
  3. 3 Whether development consent should be granted notwithstanding the exceedance of the building height standard

Ratio Decidendi

The applicant’s cl 4.6 written request demonstrated that strict compliance with the 14m building height standard is unreasonable or unnecessary as the objectives of the control are achieved notwithstanding the minor exceedance, and sufficient environmental planning grounds exist to justify the contravention. As all tests under cl 4.6 of the BBLEP are satisfied and the development meets the applicable objectives, the Court is empowered to uphold the appeal and grant consent.

Court Disposition

Appeal upheld; development consent granted with conditions; costs order made against applicant as to costs thrown away from amended plans.

Orders

  • Leave granted to applicant to rely on amended plans and written cl 4.6 request
  • Applicant’s cl 4.6 written request for variation to the height control is upheld