Lumex Property Group Pty Ltd v Ku-ring-gai Council [2020] NSWLEC 1628

Lumex Property Group Pty Ltd v Ku-ring-gai Council [2020] NSWLEC 1628

Because the proposed shop-top housing was permissible in the B2 Local Centre Zone, the applicant's cl 4.6 written request justified the minor height exceedances by demonstrating consistency with the objectives of the height standard and zone, that strict compliance was unreasonable and unnecessary, and that sufficient environmental planning grounds existed, and because the proposal otherwise satisfied relevant planning controls and conditions addressed SEPP 55 matters, the parties' agreed decision to approve DA 0070/20 subject to conditions was within the Court's power and had to be given effect under s 34(3) of the Land and Environment Court Act 1979.

Jurisdiction
Australia
Judgment Date
10 December 2020
Procedural Posture
Class 1 Development Application Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of DA 0070/20 / Orders Made Following a Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979 and Agreement Between the Parties
Outcome
Applicant's cl 4.6 written request upheld; appeal upheld; DA 0070/20 approved subject to conditions at Annexure A.
Legal Topics
['development Application' 'deemed Refusal Appeal' 'conciliation Conference' 'clause 4.6 Written Request' 'height of Buildings Development Standard' 'shop Top Housing' 'integrated Development' 'design Quality of Residential Apartment Development' 'basix' 'remediation of Land']
['planning and Environment Law'] ['development Application' 'deemed Refusal Appeal' 'conciliation Conference' 'clause 4.6 Written Request' 'height of Buildings Development Standard' 'shop Top Housing' 'integrated Development' 'design Quality of Residential Apartment Development' 'basix' 'remediation of Land']

Case Brief

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Procedural Posture

Class 1 Development Application Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of DA 0070/20 / Orders Made Following a Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979 and Agreement Between the Parties

Legal Issues

  1. 1 ["Whether the parties' agreed decision to approve the development application subject to conditions was one the Court could have made in the proper exercise of its powers under s 34(3) of the Land and Environment Court Act 1979." "Whether the applicant's written request under cl 4.6 of the Ku-ring-gai Local Environmental Plan (Local Centres) 2012 justified contravention of the height of buildings development standard in cl 4.3." 'Whether the proposed shop-top housing development satisfied relevant jurisdictional preconditions and planning controls, including permissibility in the B2 Local Centre Zone, SEPP 65, BASIX and SEPP 55 requirements.']

Ratio Decidendi

Because the proposed shop-top housing was permissible in the B2 Local Centre Zone, the applicant's cl 4.6 written request justified the minor height exceedances by demonstrating consistency with the objectives of the height standard and zone, that strict compliance was unreasonable and unnecessary, and that sufficient environmental planning grounds existed, and because the proposal otherwise satisfied relevant planning controls and conditions addressed SEPP 55 matters, the parties' agreed decision to approve DA 0070/20 subject to conditions was within the Court's power and had to be given effect under s 34(3) of the Land and Environment Court Act 1979.

Court Disposition

Applicant's cl 4.6 written request upheld; appeal upheld; DA 0070/20 approved subject to conditions at Annexure A.

Orders

  • ['The Applicant\'s written request pursuant to clause 4.6 of the Ku-ring-gai Local Environmental Plan (Local Centres) 2012 ("KLEP 2012") dated 24 November 2020 seeking to justify the breach of the height of buildings development standard pursuant to clause 4.3 of KLEP 2012 is upheld.' 'The appeal is upheld.'...