Samia v Bayside Council [2020] NSWLEC 1526

Samia v Bayside Council [2020] NSWLEC 1526

The Court was satisfied that the parties' s 34 agreement was lawful and that all preconditions to consent had been met. The amended development was permissible with consent in the B2 Local Centre zone, was consistent with zone objectives, complied with the FSR control, and the cl 4.6 request adequately justified the 18.2m maximum height against the 14m standard because compliance was unreasonable and unnecessary and sufficient environmental planning grounds existed. Heritage, earthworks, stormwater, SEPP 65, ADG, SEPP 55, BASIX and Water Management Act 2000 issues were addressed by the amended plans and agreed conditions, so the appeal was upheld and development consent granted subject to...

Jurisdiction
Australia
Judgment Date
04 November 2020
Procedural Posture
Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of a Development Application / Section 34 Conciliation Conference; Agreement Filed and Orders Made
Outcome
Appeal upheld; cl 4.6 written request upheld; development application approved subject to conditions; Applicant ordered to pay Respondent's thrown away costs.
Legal Topics
['development Application' 'mixed Use Development' 'heritage Conservation Area' 'height Development Standard Breach' 'clause 4.6 Written Request' 'section 34 Conciliation Agreement' 'costs Thrown Away by Amended Development Application' 'deferred Commencement Condition' 'contamination and Remediation' 'basix Compliance']
['planning and Environment Law' 'development Consent' 'land and Environment Court Procedure'] ['development Application' 'mixed Use Development' 'heritage Conservation Area' 'height Development Standard Breach' 'clause 4.6 Written Request' 'section 34 Conciliation Agreement' 'costs Thrown Away by Amended Development Application' 'deferred Commencement Condition' 'contamination and Remediation' 'basix Compliance']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of a Development Application / Section 34 Conciliation Conference; Agreement Filed and Orders Made

Legal Issues

  1. 1 ["Whether the Court could make orders giving effect to the parties' s 34 agreement in the proper exercise of its functions." 'Whether the cl 4.6 written request adequately justified variation of the maximum height of buildings development standard in cl 4.3 of the Botany Local Environmental Plan 2013.' 'Whether the amended mixed use development satisfied relevant planning controls and preconditions to consent, including heritage, earthworks, stormwater, SEPP 65, SEPP 55, BASIX and Water Management Act 2000 matters.' 'Whether costs thrown away by amendment of the development application should be paid by the Applicant.']

Ratio Decidendi

The Court was satisfied that the parties' s 34 agreement was lawful and that all preconditions to consent had been met. The amended development was permissible with consent in the B2 Local Centre zone, was consistent with zone objectives, complied with the FSR control, and the cl 4.6 request adequately justified the 18.2m maximum height against the 14m standard because compliance was unreasonable and unnecessary and sufficient environmental planning grounds existed. Heritage, earthworks, stormwater, SEPP 65, ADG, SEPP 55, BASIX and Water Management Act 2000 issues were addressed by the amended plans and agreed conditions, so the appeal was upheld and development consent granted subject to...

Court Disposition

Appeal upheld; cl 4.6 written request upheld; development application approved subject to conditions; Applicant ordered to pay Respondent's thrown away costs.

Orders

  • ['Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay the costs of the Respondent that were thrown away as a result of amending the development application in the amount of $23,000 within 60 days of the date of these orders.' "The Applicant's written request...