Antonella Da Silva and Development Designs Pty Ltd v Inner West Council [2024] NSWLEC 1434

Antonella Da Silva and Development Designs Pty Ltd v Inner West Council [2024] NSWLEC 1434

Because the Commissioner was satisfied that the cl 4.6 written request adequately justified the FSR variation, that the amended proposal met the relevant pre-jurisdictional environmental planning requirements, and that the parties' agreed decision was one the Court could have made in the proper exercise of its functions, the Court was required under s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with the agreement.

Jurisdiction
Australia
Judgment Date
25 July 2024
Procedural Posture
Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Concerning Refusal of Development Application 2023/0080 / Orders Following Mandatory Conciliation Conference and Agreement Under S 34 of the Land and Environment Court Act 1979
Outcome
Appeal upheld; clause 4.6 written request upheld; Development Application 2023/0080 granted consent subject to conditions.
Legal Topics
['alterations and Additions to Dwelling House' 'floor Space Ratio Development Standard Variation' 'clause 4.6 Written Request' 'r1 General Residential Zone' 'heritage Conservation Area' 'stormwater Management' 'basix and Sustainable Buildings Transitional Provisions' 'sydney Harbour Catchment']
['planning and Environment' 'development Consent' 'heritage Conservation'] ['alterations and Additions to Dwelling House' 'floor Space Ratio Development Standard Variation' 'clause 4.6 Written Request' 'r1 General Residential Zone' 'heritage Conservation Area' 'stormwater Management' 'basix and Sustainable Buildings Transitional Provisions' 'sydney Harbour Catchment']

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Procedural Posture

Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Concerning Refusal of Development Application 2023/0080 / Orders Following Mandatory Conciliation Conference and Agreement Under S 34 of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the parties' agreed decision was a decision 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 the Inner West Local Environmental Plan 2022 justified variation of the floor space ratio standard in cl 4.4.' 'Whether the amended development satisfied relevant environmental planning requirements concerning zoning, heritage, acid sulfate soils, earthworks, stormwater, biodiversity and conservation, and BASIX or sustainable buildings provisions.']

Ratio Decidendi

Because the Commissioner was satisfied that the cl 4.6 written request adequately justified the FSR variation, that the amended proposal met the relevant pre-jurisdictional environmental planning requirements, and that the parties' agreed decision was one the Court could have made in the proper exercise of its functions, the Court was required under s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with the agreement.

Court Disposition

Appeal upheld; clause 4.6 written request upheld; Development Application 2023/0080 granted consent subject to conditions.

Orders

  • ['The written request made pursuant to clause 4.6 of the Inner West Local Environment Plan 2022 in relation to a variation to the Floor Space Ratio standard (of clause 4.4 of the Inner West Local Environment Plan 2022), prepared by GSA Planning and dated 18 July 2024, is upheld.' 'The appeal is upheld.' "Development...