Kai-Tian Group Kogarah Pty Ltd v Georges River Council [2021] NSWLEC 1271

Kai-Tian Group Kogarah Pty Ltd v Georges River Council [2021] NSWLEC 1271

The Court upheld the appeal and granted consent because the parties' agreed decision was one the Court could make: the amended residential flat building was permissible with consent in the R4 High Density Residential zone, the clause 4.6 request adequately justified the minor height exceedance and satisfied the relevant public interest and objective tests, heritage, contamination, BASIX and design quality matters were satisfactorily addressed, no submissions were received to the amended proposal, and the amended proposal could be granted consent under s 4.15(1) and s 4.16 of the Environmental Planning and Assessment Act 1979.

Jurisdiction
Australia
Judgment Date
25 May 2021
Procedural Posture
Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application Da/2017/0597 / Conciliation Conference Under S 34 a of the Land and Environment Court Act 1979; Final Agreed Orders
Outcome
Appeal upheld; clause 4.6 variation request upheld; development consent granted subject to conditions; Applicant ordered to pay agreed costs thrown away.
Legal Topics
['development Application Appeal' 'residential Flat Building' 'clause 4.6 Variation Request' 'building Height Development Standard' 'conciliation Agreement' 'development Consent']
['environmental Planning and Development' 'land and Environment'] ['development Application Appeal' 'residential Flat Building' 'clause 4.6 Variation Request' 'building Height Development Standard' 'conciliation Agreement' 'development Consent']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application Da/2017/0597 / Conciliation Conference Under S 34 a of the Land and Environment Court Act 1979; Final Agreed Orders

Legal Issues

  1. 1 ["Whether the Court could dispose of the proceedings in accordance with the parties' agreement under s 34(3) of the Land and Environment Court Act 1979." 'Whether the amended proposal was permissible with consent in the R4 High Density Residential zone under the Kogarah Local Environmental Plan 2012.' "Whether the Applicant's clause 4.6 written request justified variation of the height of buildings development standard in clause 4.3 of the Kogarah Local Environmental Plan 2012." 'Whether heritage conservation, remediation of land, BASIX and design quality requirements were satisfactorily addressed.' 'Whether consent should be granted to Development Application DA/2017/0597 under s 4.15(1) and s 4.16 of the Environmental Planning and Assessment Act 1979.']

Ratio Decidendi

The Court upheld the appeal and granted consent because the parties' agreed decision was one the Court could make: the amended residential flat building was permissible with consent in the R4 High Density Residential zone, the clause 4.6 request adequately justified the minor height exceedance and satisfied the relevant public interest and objective tests, heritage, contamination, BASIX and design quality matters were satisfactorily addressed, no submissions were received to the amended proposal, and the amended proposal could be granted consent under s 4.15(1) and s 4.16 of the Environmental Planning and Assessment Act 1979.

Court Disposition

Appeal upheld; clause 4.6 variation request upheld; development consent granted subject to conditions; Applicant ordered to pay agreed costs thrown away.

Orders

  • ["Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away in the agreed amount of $5,000 within 14 days of these orders being made." "The Applicant's written request under clause 4.6 of the Kogarah Local Environmental Plan 2012,...