Zabakly v Canterbury-Bankstown Council [2020] NSWLEC 1272

Zabakly v Canterbury-Bankstown Council [2020] NSWLEC 1272

Because the amended development satisfied the relevant jurisdictional requirements, including permissibility and development standards under the Canterbury Local Environmental Plan 2012 and State Environmental Planning Policy (Affordable Rental Housing) 2009, contamination considerations under State Environmental Planning Policy No 55—Remediation of Land, and BASIX requirements, the parties' agreement was a decision the Court could have made in the proper exercise of its functions; therefore s 34(3) of the Land and Environment Court Act 1979 required the proceedings to be disposed of in accordance with that agreement.

Jurisdiction
Australia
Judgment Date
26 June 2020
Procedural Posture
Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. 229/2019 / Orders Following S 34 Conciliation Conference and Agreement Between the Parties
Outcome
Appeal upheld; Development Application 229/2019 approved subject to conditions in Annexure A.
Legal Topics
['development Application' 'alterations and Additions to Dwelling' 'secondary Dwelling' 'conciliation Conference' 'section 34 Agreement' 'jurisdictional Prerequisites for Development Consent']
['planning and Environment Law'] ['development Application' 'alterations and Additions to Dwelling' 'secondary Dwelling' 'conciliation Conference' 'section 34 Agreement' 'jurisdictional Prerequisites for Development Consent']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. 229/2019 / Orders Following S 34 Conciliation Conference and Agreement Between the Parties

Legal Issues

  1. 1 ['Whether the Court could grant consent to the amended development application in the proper exercise of its functions under ss 4.15 and 4.16 of the Environmental Planning and Assessment Act 1979.' "Whether the parties' agreement should be given effect under s 34(3) of the Land and Environment Court Act 1979." 'Whether jurisdictional requirements under the Canterbury Local Environmental Plan 2012, State Environmental Planning Policy (Affordable Rental Housing) 2009, State Environmental Planning Policy No 55—Remediation of Land, and State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 were satisfied.']

Ratio Decidendi

Because the amended development satisfied the relevant jurisdictional requirements, including permissibility and development standards under the Canterbury Local Environmental Plan 2012 and State Environmental Planning Policy (Affordable Rental Housing) 2009, contamination considerations under State Environmental Planning Policy No 55—Remediation of Land, and BASIX requirements, the parties' agreement was a decision the Court could have made in the proper exercise of its functions; therefore s 34(3) of the Land and Environment Court Act 1979 required the proceedings to be disposed of in accordance with that agreement.

Court Disposition

Appeal upheld; Development Application 229/2019 approved subject to conditions in Annexure A.

Orders

  • ['The Applicant is given leave to amend the development application and rely upon the plans in the proceedings referred to at condition 3 in Schedule B of Annexure A.' "Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away on the...