Dickinson v City of Canada Bay Council [2019] NSWLEC 1017

Dickinson v City of Canada Bay Council [2019] NSWLEC 1017

The parties' agreed decision to uphold the appeal and grant consent with conditions was one the Court could have made in the proper exercise of its functions because the amended retractable awning proposal addressed relevant planning controls, the cl 4.6 variation to the height standard was reasonable, and the proposal would not cause unacceptable streetscape, view loss, overlooking or precedence impacts. The Court was therefore required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with the agreement.

Jurisdiction
Australia
Judgment Date
18 January 2019
Procedural Posture
Class 1 Appeal Against Deemed Refusal of Development Application Da2018/0010 / Conciliation Conference Under S 34 Aa(2) of the Land and Environment Court Act 1979; Orders Made by Agreement
Outcome
Appeal upheld; development application approved subject to conditions; no costs order made.
Legal Topics
['development Application' 'deemed Refusal Appeal' 'conciliation Conference' 'consent Orders' 'height Development Standard Variation' 'residential Apartment Development']
['planning and Environment Law'] ['development Application' 'deemed Refusal Appeal' 'conciliation Conference' 'consent Orders' 'height Development Standard Variation' 'residential Apartment Development']

Case Brief

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Procedural Posture

Class 1 Appeal Against Deemed Refusal of Development Application Da2018/0010 / Conciliation Conference Under S 34 Aa(2) of the Land and Environment Court Act 1979; Orders Made by Agreement

Legal Issues

  1. 1 ["Whether the Court could dispose of the proceedings in accordance with the parties' agreement under s 34(3) of the Land and Environment Court Act 1979." 'Whether consent could be granted to the amended development application for a retractable awning subject to conditions.' 'Whether the proposed height exceedance was justified by a cl 4.6 written request under Canada Bay Local Environmental Plan 2013.']

Ratio Decidendi

The parties' agreed decision to uphold the appeal and grant consent with conditions was one the Court could have made in the proper exercise of its functions because the amended retractable awning proposal addressed relevant planning controls, the cl 4.6 variation to the height standard was reasonable, and the proposal would not cause unacceptable streetscape, view loss, overlooking or precedence impacts. The Court was therefore required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with the agreement.

Court Disposition

Appeal upheld; development application approved subject to conditions; no costs order made.

Orders

  • ['The Applicant is granted leave to rely on amended plans as set out in Annexure A and documentation referred to in condition 1 of Annexure A.' 'The Appeal is upheld.' 'Development Application DA2018/0010 for the erection of a retractable awning over the existing terrace surface is approved subject to the conditions...