Lateral Estate Pty Ltd v Georges River Council [2019] NSWLEC 1366

Lateral Estate Pty Ltd v Georges River Council [2019] NSWLEC 1366

The Court was satisfied that the amended proposal was permissible in the B4 Mixed Use zone, relevant jurisdictional requirements were met, the height and floor space ratio cl 4.6 written requests adequately justified the contraventions and were in the public interest, and the parties' agreed decision was one the Court could have made in the proper exercise of its functions; accordingly, s 34(3) required the Court to dispose of the proceedings by upholding the appeal and granting consent subject to conditions.

Jurisdiction
Australia
Judgment Date
06 August 2019
Procedural Posture
Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Application No. 2018/0139 / Orders Following Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979
Outcome
Appeal upheld; Development Application No. DA/2018/0139 approved subject to conditions in Annexure B.
Legal Topics
['development Application Appeal' 'conciliation Conference Agreement' 'clause 4.6 Variation Request' 'height of Buildings Development Standard' 'floor Space Ratio Development Standard' 'mixed Use Development' 'costs Thrown Away']
['planning and Environment Law' 'development Consent'] ['development Application Appeal' 'conciliation Conference Agreement' 'clause 4.6 Variation Request' 'height of Buildings Development Standard' 'floor Space Ratio Development Standard' 'mixed Use Development' 'costs Thrown Away']

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Procedural Posture

Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Application No. 2018/0139 / Orders Following Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether 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" 'Whether consent could be granted for the amended development application under s 4.16 of the Environmental Planning and Assessment Act 1979' 'Whether the written request to contravene the height of buildings development standard satisfied cl 4.6 of Kogarah Local Environmental Plan 2012' 'Whether the written request to contravene the floor space ratio development standard satisfied cl 4.6 of Kogarah Local Environmental Plan 2012' 'Whether jurisdictional preconditions concerning controlled activity approval, land contamination, SEPP 65 design verification, public submissions and regional environmental planning matters were addressed']

Ratio Decidendi

The Court was satisfied that the amended proposal was permissible in the B4 Mixed Use zone, relevant jurisdictional requirements were met, the height and floor space ratio cl 4.6 written requests adequately justified the contraventions and were in the public interest, and the parties' agreed decision was one the Court could have made in the proper exercise of its functions; accordingly, s 34(3) required the Court to dispose of the proceedings by upholding the appeal and granting consent subject to conditions.

Court Disposition

Appeal upheld; Development Application No. DA/2018/0139 approved subject to conditions in Annexure B.

Orders

  • ["The Applicant is granted leave to rely upon the amended material, copies of which are behind Annexure 'A'." "The Applicant is to pay the Respondent's costs thrown away in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed in the amount of $70,000.00 within twenty eight...