Graham v Northern Beaches Council [2020] NSWLEC 1335

Graham v Northern Beaches Council [2020] NSWLEC 1335

Because the Court was satisfied that relevant jurisdictional pre-requisites had been met, including permissibility in the E4 Environmental Living zone, consideration of applicable LEP and SEPP provisions, notification and submissions, and satisfaction of the requirements of clause 4.6 of the Pittwater Local Environmental Plan 2014 for the building height contravention, the parties' agreed decision to grant consent subject to conditions was one the Court could have made in the proper exercise of its functions and therefore had to be given effect under s 34(3) of the Land and Environment Court Act 1979.

Jurisdiction
Australia
Judgment Date
04 August 2020
Procedural Posture
Class 1 Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application 2020/0028 / Orders Made Following Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979 and Agreement Between the Parties
Outcome
Appeal upheld; Development Application DA 2020/0028 approved subject to conditions.
Legal Topics
['development Application Refusal Appeal' 'conciliation Conference' 'agreement Between Parties' 'building Height Development Standard Variation' 'clause 4.6 Written Request' 'dwelling House and Swimming Pool Development']
['planning and Environment' 'land Use and Development Consent'] ['development Application Refusal Appeal' 'conciliation Conference' 'agreement Between Parties' 'building Height Development Standard Variation' 'clause 4.6 Written Request' 'dwelling House and Swimming Pool Development']

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Procedural Posture

Class 1 Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application 2020/0028 / Orders Made Following Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979 and Agreement Between the Parties

Legal Issues

  1. 1 ["Whether the parties' agreed decision was one 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 jurisdictional pre-requisites for granting development consent under the Environmental Planning and Assessment Act 1979 and relevant environmental planning instruments were satisfied' "Whether the applicant's written request under clause 4.6 of the Pittwater Local Environmental Plan 2014 justified contravention of the building height development standard in clause 4.3"]

Ratio Decidendi

Because the Court was satisfied that relevant jurisdictional pre-requisites had been met, including permissibility in the E4 Environmental Living zone, consideration of applicable LEP and SEPP provisions, notification and submissions, and satisfaction of the requirements of clause 4.6 of the Pittwater Local Environmental Plan 2014 for the building height contravention, the parties' agreed decision to grant consent subject to conditions was one the Court could have made in the proper exercise of its functions and therefore had to be given effect under s 34(3) of the Land and Environment Court Act 1979.

Court Disposition

Appeal upheld; Development Application DA 2020/0028 approved subject to conditions.

Orders

  • ["The applicant is granted leave to amend the development application and rely on the amended plans referred to in Condition 1 of Annexure 'A'." "The applicant's written request dated 24 July 2020 prepared by Minto Planning Services pursuant to clause 4.6 of the Pittwater Local Environmental Plan 2014 (PLEP) seeking...