Mackenzie Architects International Pty Ltd v Ku-ring-gai Council [2023] NSWLEC 1044

Mackenzie Architects International Pty Ltd v Ku-ring-gai Council [2023] NSWLEC 1044

Because the parties reached an agreement under s 34 of the Land and Environment Court Act 1979 and the Commissioner was satisfied that each identified jurisdictional precondition was met, including permissibility in the R4 High Density Residential zone, sufficient clause 4.6 justification for the height contravention and any floor space ratio contravention, and satisfaction of relevant heritage, earthworks, biodiversity, stormwater, design quality, traffic, BASIX and notification requirements, the grant of development consent subject to conditions was a decision the Court could make in the proper exercise of its functions.

Jurisdiction
Australia
Judgment Date
07 February 2023
Procedural Posture
Class 1 Appeal Concerning a Development Application Deemed Refused / Orders Made Following Conciliation Conference and Agreement Under S 34 of the Land and Environment Court Act 1979
Outcome
Appeal upheld; development consent granted subject to conditions.
Legal Topics
['development Application Appeal' 'residential Flat Building' 'clause 4.6 Written Requests' 'height Development Standard' 'floor Space Ratio Development Standard' 'conciliation Conference' 'costs Thrown Away']
['planning and Environment' 'development Consent' 'local Government'] ['development Application Appeal' 'residential Flat Building' 'clause 4.6 Written Requests' 'height Development Standard' 'floor Space Ratio Development Standard' 'conciliation Conference' 'costs Thrown Away']

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Procedural Posture

Class 1 Appeal Concerning a Development Application Deemed Refused / Orders Made Following Conciliation Conference and Agreement Under S 34 of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether the Court could grant development consent to the amended development application for a residential flat building subject to conditions following a s 34 agreement.' 'Whether the clause 4.6 written request justified contravention of the height development standard in cl 4.3(2A) of Ku-ring-gai Local Environmental Plan 2015.' 'Whether, if there was a contravention of the floor space ratio development standard in cl 4.4(2C) of Ku-ring-gai Local Environmental Plan 2015, consent could be granted pursuant to cl 4.6.' 'Whether the jurisdictional preconditions for granting development consent were satisfied.']

Ratio Decidendi

Because the parties reached an agreement under s 34 of the Land and Environment Court Act 1979 and the Commissioner was satisfied that each identified jurisdictional precondition was met, including permissibility in the R4 High Density Residential zone, sufficient clause 4.6 justification for the height contravention and any floor space ratio contravention, and satisfaction of relevant heritage, earthworks, biodiversity, stormwater, design quality, traffic, BASIX and notification requirements, the grant of development consent subject to conditions was a decision the Court could make in the proper exercise of its functions.

Court Disposition

Appeal upheld; development consent granted subject to conditions.

Orders

  • ['The Applicant is granted leave to file in Court the documents referred to in [8].' 'Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application to rely upon the...