JV Co. 8 Pty Ltd v Shellharbour City Council [2019] NSWLEC 1301

JV Co. 8 Pty Ltd v Shellharbour City Council [2019] NSWLEC 1301

The appeal is upheld and development consent is granted because the application, as amended and supported by required written requests, complies with applicable statutes and planning instruments except for maximum height, which is justifiably varied under cl 4.6 SLEP due to flood mitigation needs, and the proposal is consistent with zone objectives and the public interest.

Jurisdiction
Australia
Judgment Date
28 June 2019
Procedural Posture
Appeal (class 1) Against Deemed Refusal of Development Application / Final Determination Following Conciliation Conference
Outcome
Appeal upheld; development consent granted with conditions; applicant to pay respondent's costs of amendments
Legal Topics
['development Application' 'land and Environment Court Act 1979 S 34' 'epa Act S 8.7' 'height Non Compliance' 'clause 4.6 Variation' 'flood Management' 'mixed Use With Childcare' 'zoning (b4 Mixed Use)']
['planning and Environment'] ['development Application' 'land and Environment Court Act 1979 S 34' 'epa Act S 8.7' 'height Non Compliance' 'clause 4.6 Variation' 'flood Management' 'mixed Use With Childcare' 'zoning (b4 Mixed Use)']

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Procedural Posture

Appeal (class 1) Against Deemed Refusal of Development Application / Final Determination Following Conciliation Conference

Legal Issues

  1. 1 ['Whether amended development application DA0580/2017 should be granted consent under s 8.7 of the Environmental Planning and Assessment Act 1979' 'Whether a variation to the development standard for maximum height in cl 4.3 of the Shellharbour Local Environmental Plan 2013 (SLEP) should be permitted under cl 4.6 of the SLEP' 'Whether the proposal sufficiently addresses flood management, stormwater, amenity, bushfire, and zone objectives, and complies with relevant planning instruments']

Ratio Decidendi

The appeal is upheld and development consent is granted because the application, as amended and supported by required written requests, complies with applicable statutes and planning instruments except for maximum height, which is justifiably varied under cl 4.6 SLEP due to flood mitigation needs, and the proposal is consistent with zone objectives and the public interest.

Court Disposition

Appeal upheld; development consent granted with conditions; applicant to pay respondent's costs of amendments

Orders

  • ['Applicant granted leave to amend DA0580/2017 to rely on specified plans and documents.' "Applicant to pay respondent's costs thrown away by amendments as agreed or assessed." 'Written request under cl 4.6 SLEP upheld and accepted as satisfying statutory requirements; height variation permitted.' 'Appeal upheld.'...