Kozarovski v Georges River Council [2021] NSWLEC 1512

Kozarovski v Georges River Council [2021] NSWLEC 1512

The agreed decision was one the Court could have made in the proper exercise of its functions because the proposed child care centre was permissible with consent in the R2 Low Density Residential zone, complied with the applicable height and floor space controls, adequately addressed earthworks and land contamination requirements, was consistent with relevant provisions of the Child Care Planning Guideline, and complied with relevant indoor and outdoor unencumbered space requirements. 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 parties' agreement.

Jurisdiction
Australia
Judgment Date
03 September 2021
Procedural Posture
Class 1 Development Appeal Concerning Deemed Refusal of Development Application Da/2021/0051 / Orders Following S 34 Conciliation Conference and Agreement Between the Parties
Outcome
Appeal upheld and development application approved subject to conditions, with the applicant ordered to pay the respondent's costs thrown away.
Legal Topics
['development Application' 'deemed Refusal' 'conciliation Conference' 'child Care Centre' 'jurisdictional Prerequisites for Consent' 'costs Thrown Away']
['planning and Environment Law' 'development Consent' 'land and Environment Court Proceedings'] ['development Application' 'deemed Refusal' 'conciliation Conference' 'child Care Centre' 'jurisdictional Prerequisites for Consent' 'costs Thrown Away']

Case Brief

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Procedural Posture

Class 1 Development Appeal Concerning Deemed Refusal of Development Application Da/2021/0051 / Orders Following S 34 Conciliation Conference and Agreement Between the Parties

Legal Issues

  1. 1 ["Whether the parties' agreed decision to uphold the appeal and grant development consent was a decision the Court could have made in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979." 'Whether the jurisdictional prerequisites for granting consent to the development application under s 4.16 of the Environmental Planning and Assessment Act 1979 were satisfied.' 'Whether the proposed centre-based child care facility complied with relevant planning instruments, guidelines and regulations.']

Ratio Decidendi

The agreed decision was one the Court could have made in the proper exercise of its functions because the proposed child care centre was permissible with consent in the R2 Low Density Residential zone, complied with the applicable height and floor space controls, adequately addressed earthworks and land contamination requirements, was consistent with relevant provisions of the Child Care Planning Guideline, and complied with relevant indoor and outdoor unencumbered space requirements. 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 parties' agreement.

Court Disposition

Appeal upheld and development application approved subject to conditions, with the applicant ordered to pay the respondent's costs thrown away.

Orders

  • ["The applicant is to pay the respondent's costs thrown away, pursuant to s.8.15 (3) in the amount of $2,000 within 28 days." 'The appeal is upheld.' "Development Application No. DA/2021/0051 seeking consent for the demolition of existing structures, removal of trees and construction of a single level child care...