Laurus Projects Pty Ltd v Port Macquarie-Hastings Council [2022] NSWLEC 1497

Laurus Projects Pty Ltd v Port Macquarie-Hastings Council [2022] NSWLEC 1497

Because the agreed decision was one 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 parties' decision. The Court was satisfied that the proposed development was permissible with consent in the R3 zone, that the cl 4.6 written request adequately addressed the height standard contravention, that the contravention raised no matter of State or regional planning significance, and that relevant planning and environmental prerequisites had been addressed. The appeal was therefore upheld and development consent granted subject to conditions.

Jurisdiction
Australia
Judgment Date
15 September 2022
Procedural Posture
Class 1 Development Appeal / Orders Following Conciliation Conference and S 34 Agreement
Outcome
Appeal upheld; development consent granted subject to conditions; Applicant to pay Second Respondent's costs thrown away.
Legal Topics
['development Application' 'residential Flat Building' 'conciliation Conference' 'development Consent' 'clause 4.6 Variation Request' 'height Development Standard' 'state Environmental Planning Policy No 65' 'basix' 'bushfire Prone Land' 'koala Habitat' 'coastal Wetlands and Littoral Rainforest Proximity']
['planning and Environment Law'] ['development Application' 'residential Flat Building' 'conciliation Conference' 'development Consent' 'clause 4.6 Variation Request' 'height Development Standard' 'state Environmental Planning Policy No 65' 'basix' 'bushfire Prone Land' 'koala Habitat' 'coastal Wetlands and Littoral Rainforest Proximity']

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Procedural Posture

Class 1 Development Appeal / Orders Following Conciliation Conference and S 34 Agreement

Legal Issues

  1. 1 ["Whether the parties' decision under s 34 of the Land and Environment Court Act 1979 was a decision the Court could have made in the proper exercise of its functions." 'Whether the proposed residential flat building was permissible with consent in the R3 Medium Density Residential zone under the Port Macquarie Hastings Local Environmental Plan 2011.' 'Whether the written request under cl 4.6 of the Port Macquarie Hastings Local Environmental Plan 2011 adequately justified contravention of the 17.5m height standard in cl 4.3.' 'Whether relevant jurisdictional prerequisites under applicable environmental planning instruments and legislation were satisfied before development consent could be granted.']

Ratio Decidendi

Because the agreed decision was one 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 parties' decision. The Court was satisfied that the proposed development was permissible with consent in the R3 zone, that the cl 4.6 written request adequately addressed the height standard contravention, that the contravention raised no matter of State or regional planning significance, and that relevant planning and environmental prerequisites had been addressed. The appeal was therefore upheld and development consent granted subject to conditions.

Court Disposition

Appeal upheld; development consent granted subject to conditions; Applicant to pay Second Respondent's costs thrown away.

Orders

  • ["The Applicant agrees to pay the Second Respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $65,000 within 35 days of this agreement being signed by both parties." 'The appeal is upheld.' 'Development Application DA2021-219.1 for the demolition...