Green v Sutherland Shire Council [2023] NSWLEC 1178

Green v Sutherland Shire Council [2023] NSWLEC 1178

Because the parties reached agreement to grant development consent subject to conditions, the relevant jurisdictional prerequisites were identified as satisfied, and the Commissioner was satisfied that the cl 4.6 Floor Space Ratio variation and the grant of consent were decisions the Court could make in the proper exercise of its functions, the Court was required under s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with the parties' agreement.

Jurisdiction
Australia
Judgment Date
19 April 2023
Procedural Posture
Class 1 Appeal Against Deemed Refusal of Development Application No. Da22/1040 Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 / Orders Following Conciliation Conference and Agreement Between the Parties Under S 34(3) of the Land and Environment Court Act 1979
Outcome
The Applicant's cl 4.6 written request was upheld, the appeal was upheld, and Development Application No 22/1040 was determined by the grant of Development Consent subject to conditions.
Legal Topics
['development Application' 'deemed Refusal Appeal' 'conciliation Conference' 'floor Space Ratio Variation' 'clause 4.6 Written Request' 'residential Dwelling Development']
['planning and Environment' 'development Consent'] ['development Application' 'deemed Refusal Appeal' 'conciliation Conference' 'floor Space Ratio Variation' 'clause 4.6 Written Request' 'residential Dwelling Development']

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Procedural Posture

Class 1 Appeal Against Deemed Refusal of Development Application No. Da22/1040 Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 / Orders Following Conciliation Conference and Agreement Between the Parties Under S 34(3) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the Court could grant development consent to Development Application No. DA22/1040 in accordance with the parties' agreement under s 34(3) of the Land and Environment Court Act 1979." "Whether the Applicant's written request under cl 4.6 of the Sutherland Shire Local Environmental Plan 2015 to vary the Floor Space Ratio development standard in cl 4.4 should be upheld." 'Whether relevant jurisdictional prerequisites and planning controls were satisfied so that the agreed decision was one the Court could make in the proper exercise of its functions.']

Ratio Decidendi

Because the parties reached agreement to grant development consent subject to conditions, the relevant jurisdictional prerequisites were identified as satisfied, and the Commissioner was satisfied that the cl 4.6 Floor Space Ratio variation and the grant of consent were decisions the Court could make in the proper exercise of its functions, the Court was required under s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with the parties' agreement.

Court Disposition

The Applicant's cl 4.6 written request was upheld, the appeal was upheld, and Development Application No 22/1040 was determined by the grant of Development Consent subject to conditions.

Orders

  • ["The Applicant's written request, pursuant to clause 4.6 of the Sutherland Shire Local Environmental Plan 2015, seeking a variation to the development standard for Floor Space Ratio in clause 4.4 of the Sutherland Shire Local Environmental Plan 2015, is upheld." 'The appeal is upheld.' 'Development Application No...