Jaques v Waverley Council [2018] NSWLEC 1641

Jaques v Waverley Council [2018] NSWLEC 1641

The Commissioner was satisfied that the agreed decision to grant development consent to the amended application subject to conditions was one the Court could make in the proper exercise of its functions because the development was for a dwelling house permissible in the R2 Low Density Residential zone and the clause 4.6 written request adequately justified the 1.05m height contravention by demonstrating environmental planning grounds, lack of adverse amenity impact, consistency with relevant objectives, and public interest. The proceedings were therefore disposed of in accordance with the parties' agreement under s 34(3) of the Land and Environment Court Act 1979.

Jurisdiction
Australia
Judgment Date
11 December 2018
Procedural Posture
Class 1 Development Appeal / Conciliation Conference; Final Orders by Agreement Under S 34(3) of the Land and Environment Court Act 1979
Outcome
Appeal upheld; development application approved subject to conditions.
Legal Topics
['development Application' 'alterations and Additions to Dwelling House' 'conciliation Conference' 'agreement Between Parties' 'height Development Standard Variation' 'development Consent Subject to Conditions']
['environmental Planning and Development' 'land and Environment Court Procedure'] ['development Application' 'alterations and Additions to Dwelling House' 'conciliation Conference' 'agreement Between Parties' 'height Development Standard Variation' 'development Consent Subject to Conditions']

Case Brief

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Procedural Posture

Class 1 Development Appeal / Conciliation Conference; Final Orders by Agreement Under S 34(3) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether the applicant should be granted leave to rely on amended plans and documentation.' "Whether the Court could grant development consent to the amended development application pursuant to the parties' agreement under s 34(3) of the Land and Environment Court Act 1979." "Whether the applicant's written request under clause 4.6 of the Waverley Local Environmental Plan 2012 justified contravention of the height development standard in clause 4.3."]

Ratio Decidendi

The Commissioner was satisfied that the agreed decision to grant development consent to the amended application subject to conditions was one the Court could make in the proper exercise of its functions because the development was for a dwelling house permissible in the R2 Low Density Residential zone and the clause 4.6 written request adequately justified the 1.05m height contravention by demonstrating environmental planning grounds, lack of adverse amenity impact, consistency with relevant objectives, and public interest. The proceedings were therefore disposed of in accordance with the parties' agreement under s 34(3) of the Land and Environment Court Act 1979.

Court Disposition

Appeal upheld; development application approved subject to conditions.

Orders

  • ["The Applicant is granted leave to rely upon the amended plans and documentation referred to in condition 1 in Annexure 'A'." "The Applicant's written request pursuant to clause 4.6 of the Waverley Local Environmental Plan 2012 seeking to justify the breach of the height development standard set out in clause 4.3...