Perrignon v Ku-ring-gai Council [2022] NSWLEC 1054

Perrignon v Ku-ring-gai Council [2022] NSWLEC 1054

The appeal was upheld and development consent granted because the parties reached an agreement under s 34(3) of the Land and Environment Court Act 1979, and the Commissioner was satisfied that the agreed grant of consent subject to conditions was a decision the Court could make in the proper exercise of its functions, including because the relevant jurisdictional preconditions were met and the cl 4.6 request justified the minor floor space ratio variation.

Jurisdiction
Australia
Judgment Date
18 February 2022
Procedural Posture
Class 1 Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of a Development Application / Final Orders After Conciliation Conference and Agreement Under S 34(3) of the Land and Environment Court Act 1979
Outcome
Appeal upheld; development consent granted subject to conditions in Annexure A.
Legal Topics
['alterations and Additions to Dwelling' 'swimming Pool' 'heritage Conservation Area' 'clause 4.6 Variation' 'floor Space Ratio' 'conciliation Agreement']
['planning and Environment Law' 'development Consent' 'heritage Conservation'] ['alterations and Additions to Dwelling' 'swimming Pool' 'heritage Conservation Area' 'clause 4.6 Variation' 'floor Space Ratio' 'conciliation Agreement']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 1 Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of a Development Application / Final Orders After Conciliation Conference and Agreement Under S 34(3) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether development consent should be granted to the amended development application for alterations and additions to the existing dwelling and garage and a new swimming pool at 16 Mackenzie Street, Lindfield.' 'Whether the Court could make the agreed decision under s 34(3) of the Land and Environment Court Act 1979.' 'Whether the clause 4.6 request justified contravention of the floor space ratio development standard in cl 4.4 of Ku-ring-gai Local Environmental Plan 2015.' 'Whether relevant jurisdictional preconditions, including owner’s consent, notification, zoning permissibility, heritage, contamination, BASIX and Sydney Harbour Catchment considerations, were met.']

Ratio Decidendi

The appeal was upheld and development consent granted because the parties reached an agreement under s 34(3) of the Land and Environment Court Act 1979, and the Commissioner was satisfied that the agreed grant of consent subject to conditions was a decision the Court could make in the proper exercise of its functions, including because the relevant jurisdictional preconditions were met and the cl 4.6 request justified the minor floor space ratio variation.

Court Disposition

Appeal upheld; development consent granted subject to conditions in Annexure A.

Orders

  • ['The appeal is upheld.' 'Development consent is granted to development application number DA 0084/21 lodged with the Respondent on 5 March 2021 and subsequently amended as filed with the Court on 28 January 2022, seeking consent for alterations and additions to the existing dwelling and garage and a new swimming...