Nadel v Waverley Council [2023] NSWLEC 1276

Nadel v Waverley Council [2023] NSWLEC 1276

Because the amended application and supporting material resolved the Council's contentions, the relevant planning controls and jurisdictional preconditions were satisfied, and the clause 4.6 written variation request adequately justified the floor space ratio contravention and showed consistency with the relevant objectives, the parties' agreed decision was one the Court could make in the proper exercise of its functions. The Court was therefore required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with that agreement and grant development consent subject to conditions.

Jurisdiction
Australia
Judgment Date
05 June 2023
Procedural Posture
Class 1 Appeal Concerning Refusal of Development Application DA 180/2022 / Section 34 Conciliation Conference; Parties Reached Agreement and Sought Orders
Outcome
Appeal upheld; clause 4.6 written variation request upheld; development consent granted subject to conditions.
Legal Topics
['development Application Appeal' 'conciliation Conference' 'clause 4.6 Written Variation Request' 'floor Space Ratio' 'residential Flat Building Alterations and Additions' 'jurisdictional Preconditions for Development Consent']
['planning and Environment Law' 'development Consent' 'land and Environment Court Procedure'] ['development Application Appeal' 'conciliation Conference' 'clause 4.6 Written Variation Request' 'floor Space Ratio' 'residential Flat Building Alterations and Additions' 'jurisdictional Preconditions for Development Consent']

Case Brief

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Procedural Posture

Class 1 Appeal Concerning Refusal of Development Application DA 180/2022 / Section 34 Conciliation Conference; Parties Reached Agreement and Sought Orders

Legal Issues

  1. 1 ['Whether the Court should grant leave to amend the development application to rely on amended plans and documents.' "Whether the parties' agreement 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 proposed development satisfied relevant jurisdictional preconditions under s 4.15(1) of the Environmental Planning and Assessment Act 1979.' 'Whether the clause 4.6 written variation request concerning non-compliance with the floor space ratio control should be upheld.' 'Whether development consent should be granted to DA-180/2022 subject to conditions.']

Ratio Decidendi

Because the amended application and supporting material resolved the Council's contentions, the relevant planning controls and jurisdictional preconditions were satisfied, and the clause 4.6 written variation request adequately justified the floor space ratio contravention and showed consistency with the relevant objectives, the parties' agreed decision was one the Court could make in the proper exercise of its functions. The Court was therefore required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with that agreement and grant development consent subject to conditions.

Court Disposition

Appeal upheld; clause 4.6 written variation request upheld; development consent granted subject to conditions.

Orders

  • ['The applicant is granted leave to amend the development application to rely on the plans and documents listed at Condition 1 of Annexure A.' "The applicant is to pay the respondent's costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed in the sum of $7,500...