Kez Developments Pty Ltd v Kiama Municipal Council [2023] NSWLEC 1414

Kez Developments Pty Ltd v Kiama Municipal Council [2023] NSWLEC 1414

Because the proposed multi dwelling housing was permissible with consent in the R3 Medium Density Residential zone, the application satisfied the relevant site area, building height, floor space ratio, earthworks, contamination, and BASIX-related requirements identified in the judgment, and the parties' agreement was a decision the Court could have made in the proper exercise of its functions, s 34(3) of the Land and Environment Court Act 1979 required the Court to dispose of the proceedings in accordance with that agreement.

Jurisdiction
Australia
Judgment Date
01 August 2023
Procedural Posture
Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Following Refusal of a Development Application / Conciliation Conference; Orders Made Under S 34 of the Land and Environment Court Act 1979
Outcome
Appeal upheld; development consent granted subject to conditions; Applicant to pay Respondent's costs thrown away as agreed or assessed.
Legal Topics
['development Application' 'multi Dwelling Housing' 'r3 Medium Density Residential Zone' 'conciliation Conference' 'agreement Between the Parties' 'conditional Development Consent']
['planning and Environment' 'land and Environment Court Proceedings'] ['development Application' 'multi Dwelling Housing' 'r3 Medium Density Residential Zone' 'conciliation Conference' 'agreement Between the Parties' 'conditional 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 Following Refusal of a Development Application / Conciliation Conference; Orders Made Under S 34 of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the parties' agreed decision to uphold the appeal and grant conditional development consent 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 for granting development consent to Development Application 10.2022.12.1 were satisfied.']

Ratio Decidendi

Because the proposed multi dwelling housing was permissible with consent in the R3 Medium Density Residential zone, the application satisfied the relevant site area, building height, floor space ratio, earthworks, contamination, and BASIX-related requirements identified in the judgment, and the parties' agreement was a decision the Court could have made in the proper exercise of its functions, s 34(3) of the Land and Environment Court Act 1979 required the Court to dispose of the proceedings in accordance with that agreement.

Court Disposition

Appeal upheld; development consent granted subject to conditions; Applicant to pay Respondent's costs thrown away as agreed or assessed.

Orders

  • ["The Applicant is to pay the Respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed." 'The appeal is upheld.' 'Development Application 10.2022.12.1 seeking consent for the construction of multi dwelling housing comprising 3 attached dwellings...