Kerstin Thompson Architects Pty Ltd v Sutherland Shire Council [2021] NSWLEC 1735

Kerstin Thompson Architects Pty Ltd v Sutherland Shire Council [2021] NSWLEC 1735

Because the amended development was permissible with consent in the R4 High Density Residential zone, relevant integrated development approvals and statutory prerequisites were addressed, the applicable State environmental planning policies and SSLEP controls were satisfied or acceptably addressed, and the parties' agreed conditional approval was a decision the Court could have made in the proper exercise of its functions, the Court was required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with the agreement.

Jurisdiction
Australia
Judgment Date
24 December 2021
Procedural Posture
Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of a Development Application / Orders Following S 34 Conciliation Conference and Agreement Between the Parties
Outcome
Appeal upheld; amended development application approved subject to conditions.
Legal Topics
['dual Occupancy Development' 'integrated Development' 'conciliation Conference' 'section 34 Agreement' 'coastal Management' 'heritage Impacts' 'stormwater and Drainage Works' 'foreshore Development Controls']
['planning and Environment Law' 'development Consent' 'land and Environment Court Proceedings'] ['dual Occupancy Development' 'integrated Development' 'conciliation Conference' 'section 34 Agreement' 'coastal Management' 'heritage Impacts' 'stormwater and Drainage Works' 'foreshore Development Controls']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of a Development Application / Orders Following S 34 Conciliation Conference and Agreement Between the Parties

Legal Issues

  1. 1 ["Whether the parties' agreed decision 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 jurisdictional prerequisites to grant development consent for the amended development application were satisfied.' 'Whether the proposed development complied with or acceptably responded to applicable State environmental planning policies and the Sutherland Shire Local Environmental Plan 2015.']

Ratio Decidendi

Because the amended development was permissible with consent in the R4 High Density Residential zone, relevant integrated development approvals and statutory prerequisites were addressed, the applicable State environmental planning policies and SSLEP controls were satisfied or acceptably addressed, and the parties' agreed conditional approval was a decision the Court could have made in the proper exercise of its functions, the Court was required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with the agreement.

Court Disposition

Appeal upheld; amended development application approved subject to conditions.

Orders

  • ['The appeal is upheld.' 'Development Application No. DA20/1117, as amended for the demolition of all existing structures, associated tree removal, construction of a three-storey dual occupancy with a roof top terrace, a swimming pool for each dwelling, two (2) basement levels, associated landscaping and civil works...