Kent Road Prime Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1158

Kent Road Prime Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1158

Because the Court was satisfied that the relevant jurisdictional prerequisites had been addressed, including permissibility in the R3 zone, heritage, affordable rental housing, qualified designer statement, contamination, and the cl 4.6 height variation, 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. The Court therefore disposed of the proceedings in accordance with the parties' agreement by upholding the appeal and granting conditional development consent.

Jurisdiction
Australia
Judgment Date
03 April 2020
Procedural Posture
Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of Development Application No. 140/2018 / Orders Following S 34 Conciliation Conference and Agreement Between the Parties
Outcome
Appeal upheld; Development Application No. 140/2018 approved subject to conditions; cl 4.6 request upheld.
Legal Topics
['development Application' 'residential Flat Building' 'conciliation Conference' 'agreement Between Parties' 'clause 4.6 Variation Request' 'height of Buildings Development Standard' 'heritage Conservation Area' 'contamination and Remediation' 'residential Apartment Design']
['environmental Planning and Development' 'land and Environment Court Procedure'] ['development Application' 'residential Flat Building' 'conciliation Conference' 'agreement Between Parties' 'clause 4.6 Variation Request' 'height of Buildings Development Standard' 'heritage Conservation Area' 'contamination and Remediation' 'residential Apartment Design']

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Procedural Posture

Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of Development Application No. 140/2018 / Orders Following S 34 Conciliation Conference and Agreement Between the Parties

Legal Issues

  1. 1 ["Whether the parties' agreement was a decision 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 the proposed residential flat building was permissible and satisfied relevant environmental planning instrument requirements.' 'Whether the cl 4.6 request justified contravention of the height of buildings development standard in cl 4.3 of the Woollahra Local Environmental Plan 2014.' 'Whether the site could be made suitable for the proposed development having regard to contamination considerations.']

Ratio Decidendi

Because the Court was satisfied that the relevant jurisdictional prerequisites had been addressed, including permissibility in the R3 zone, heritage, affordable rental housing, qualified designer statement, contamination, and the cl 4.6 height variation, 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. The Court therefore disposed of the proceedings in accordance with the parties' agreement by upholding the appeal and granting conditional development consent.

Court Disposition

Appeal upheld; Development Application No. 140/2018 approved subject to conditions; cl 4.6 request upheld.

Orders

  • ['Leave is granted to the Applicant to rely on the amended and additional plans, drawings and materials as referred to in the conditions of consent at Annexure B and listed at Annexure A.' "The Applicant is to pay the Respondent's costs thrown away in accordance with s 8.15(3) of the Environmental Planning and...