Jasbe Rose Bay Developments Pty Limited v Waverley Council [2020] NSWLEC 1447

Jasbe Rose Bay Developments Pty Limited v Waverley Council [2020] NSWLEC 1447

Because the proposed residential flat building was permissible in the R3 Medium Density Residential zone, the cl 4.6 request adequately justified the 4.9% breach of the floor space ratio standard, no other development standards were breached, the site could be made suitable for development through remediation-related conditions, BASIX requirements were supported by an updated certificate, and the Court had power to impose the agreed conditions, the Commissioner was satisfied that the agreed decision was one the Court could make in the proper exercise of its functions and was required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with...

Jurisdiction
Australia
Judgment Date
24 September 2020
Procedural Posture
Class 1 Appeal Concerning a Development Application Under S 8.7 of the Environmental Planning and Assessment Act 1979 / Orders Following Agreement Reached at a Conciliation Conference Under S 34 of the Land and Environment Court Act 1979
Outcome
Appeal upheld; development application approved subject to conditions.
Legal Topics
['development Application Appeal' 'residential Flat Building' 'floor Space Ratio Development Standard' 'clause 4.6 Variation Request' 'deferred Commencement Consent' 'conciliation Conference Agreement' 'contaminated Land' 'voluntary Planning Agreement']
['planning and Environment Law'] ['development Application Appeal' 'residential Flat Building' 'floor Space Ratio Development Standard' 'clause 4.6 Variation Request' 'deferred Commencement Consent' 'conciliation Conference Agreement' 'contaminated Land' 'voluntary Planning Agreement']

Case Brief

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Procedural Posture

Class 1 Appeal Concerning a Development Application Under S 8.7 of the Environmental Planning and Assessment Act 1979 / Orders Following Agreement Reached at a Conciliation Conference Under S 34 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 leave should be granted to rely on amended plans and documentation for the development application.' 'Whether consent should be granted notwithstanding contravention of the floor space ratio development standard in cl 4.4 of Waverley Local Environmental Plan 2012.' 'Whether the site could be made suitable for the proposed development having regard to State Environmental Planning Policy No 55—Remediation of Land.' 'Whether the amended development application met the relevant BASIX requirements and could be approved subject to conditions, including a voluntary planning agreement condition.']

Ratio Decidendi

Because the proposed residential flat building was permissible in the R3 Medium Density Residential zone, the cl 4.6 request adequately justified the 4.9% breach of the floor space ratio standard, no other development standards were breached, the site could be made suitable for development through remediation-related conditions, BASIX requirements were supported by an updated certificate, and the Court had power to impose the agreed conditions, the Commissioner was satisfied that the agreed decision was one the Court could make in the proper exercise of its functions and was required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with...

Court Disposition

Appeal upheld; development application approved subject to conditions.

Orders

  • ['The applicant is granted leave to rely upon the amended plans and documentation referred to in condition 1 of the conditions at annexure "A".' "The applicant is to pay the respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed." 'The clause...