Wen v Georges River Council [2020] NSWLEC 1603

Wen v Georges River Council [2020] NSWLEC 1603

The Court was satisfied that the agreed decision was one it could have made in the proper exercise of its functions because the relevant planning controls and jurisdictional prerequisites were addressed, including permissibility in the R3 Medium Density Residential zone, compliance with applicable floor space ratio and height controls, compliance with relevant Affordable Rental Housing SEPP standards, satisfaction of remediation considerations, Infrastructure SEPP consultation matters, and BASIX requirements. Accordingly, s 34(3) required the Court to dispose of the proceedings in accordance with the parties' agreement.

Jurisdiction
Australia
Judgment Date
03 December 2020
Procedural Posture
Class 1 Appeal Against Deemed Refusal of Development Application No. Da2020/0147 / Orders Following Conciliation Conference and S 34 Agreement
Outcome
Appeal upheld; development application approved subject to conditions; leave granted to amend the development application; Applicant ordered to pay Respondent's costs thrown away.
Legal Topics
['boarding House Development' 'r3 Medium Density Residential Zone' 'conciliation Conference' 'agreement Between Parties' 'jurisdictional Prerequisites for Development Consent' 'costs Thrown Away']
['planning and Environment' 'development Consent' 'land and Environment Court Procedure'] ['boarding House Development' 'r3 Medium Density Residential Zone' 'conciliation Conference' 'agreement Between Parties' 'jurisdictional Prerequisites for Development Consent' 'costs Thrown Away']

Case Brief

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Procedural Posture

Class 1 Appeal Against Deemed Refusal of Development Application No. Da2020/0147 / Orders Following Conciliation Conference and S 34 Agreement

Legal Issues

  1. 1 ["Whether the parties' agreed decision under s 34 of the Land and Environment Court Act 1979 was a decision the Court could have made in the proper exercise of its functions." 'Whether jurisdictional prerequisites for granting development consent to the amended boarding house development were satisfied.' 'Whether the appeal should be upheld and development consent granted subject to conditions.']

Ratio Decidendi

The Court was satisfied that the agreed decision was one it could have made in the proper exercise of its functions because the relevant planning controls and jurisdictional prerequisites were addressed, including permissibility in the R3 Medium Density Residential zone, compliance with applicable floor space ratio and height controls, compliance with relevant Affordable Rental Housing SEPP standards, satisfaction of remediation considerations, Infrastructure SEPP consultation matters, and BASIX requirements. Accordingly, s 34(3) required the Court to dispose of the proceedings in accordance with the parties' agreement.

Court Disposition

Appeal upheld; development application approved subject to conditions; leave granted to amend the development application; Applicant ordered to pay Respondent's costs thrown away.

Orders

  • ['The Applicant is granted leave to amend the development application and rely upon the following plans in the proceedings referred to at condition 1 in schedule 2 to Annexure A.' "The Applicant is to pay the Respondent's costs thrown away in accordance with s8.15(3) of the Environmental Planning and Assessment Act...