KHMS Corporation Pty Ltd v Central Coast Council [2022] NSWLEC 1653

KHMS Corporation Pty Ltd v Central Coast Council [2022] NSWLEC 1653

The amended development was permissible with consent under the applicable Gosford Local Environmental Plan 2014, the parties agreed that jurisdictional prerequisites were satisfied, the cl 4.6 written request adequately addressed the height of buildings variations, and the agreed grant of 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; the Court was therefore required to dispose of the proceedings in accordance with the parties' agreement.

Jurisdiction
Australia
Judgment Date
29 November 2022
Procedural Posture
Class 1 Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Orders Following S 34 Conciliation Conference Agreement
Outcome
Appeal upheld; Development Application No. 59732/2020, as amended, granted development consent subject to conditions in Annexure "A".
Legal Topics
['development Application Refusal Appeal' 'mixed Use Development' 'shop Top Housing' 'clause 4.6 Variation Request' 'height of Buildings Development Standard' 'section 34 Conciliation Agreement' 'basix' 'sepp 65' 'site Contamination']
['planning and Environment' 'development Consent' 'land and Environment Court Procedure'] ['development Application Refusal Appeal' 'mixed Use Development' 'shop Top Housing' 'clause 4.6 Variation Request' 'height of Buildings Development Standard' 'section 34 Conciliation Agreement' 'basix' 'sepp 65' 'site Contamination']

Case Brief

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Procedural Posture

Class 1 Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Orders Following S 34 Conciliation Conference Agreement

Legal Issues

  1. 1 ["Whether the parties' agreed decision to grant 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 jurisdictional prerequisites were satisfied so as not to prevent the Court exercising its function under s 34(3) of the Land and Environment Court Act 1979.' 'Whether the written request under cl 4.6 of the Gosford Local Environmental Plan 2014 to vary the height of buildings development standard could be upheld.' 'Whether the proposed development was permissible with development consent on land zoned R1 - Residential Zone and B2 Local Centre Zone under the Gosford Local Environmental Plan 2014.']

Ratio Decidendi

The amended development was permissible with consent under the applicable Gosford Local Environmental Plan 2014, the parties agreed that jurisdictional prerequisites were satisfied, the cl 4.6 written request adequately addressed the height of buildings variations, and the agreed grant of 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; the Court was therefore required to dispose of the proceedings in accordance with the parties' agreement.

Court Disposition

Appeal upheld; Development Application No. 59732/2020, as amended, granted development consent subject to conditions in Annexure "A".

Orders

  • ['The appeal is upheld.' 'Development Application No. 59732/2020, as amended, for the partial demolition of existing structures and construction of a mixed use building containing shop top housing, retail premises, serviced apartments and associated works, on land known as 302-306 Ocean View Road, Ettalong Beach...