McIntyre Development Pty Ltd v Ku-ring-gai Council [2023] NSWLEC 1760

McIntyre Development Pty Ltd v Ku-ring-gai Council [2023] NSWLEC 1760

Because the parties' agreed decision was one the Court could make in the proper exercise of its functions, the jurisdictional requirements were satisfied, the amended Development Application was permissible with consent and consistent with relevant planning controls, and the cl 4.6 written requests adequately justified the height and site dimension variations, the appeal was upheld and development consent was granted subject to conditions.

Jurisdiction
Australia
Judgment Date
19 December 2023
Procedural Posture
Class 1 Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Application Da0038/23 / Principal Judgment Following Conciliation Conference Under S 34 of the Land and Environment Court Act 1979 and Agreement Between the Parties
Outcome
Appeal upheld; development consent granted to Development Application DA0038/23 as amended, subject to conditions.
Legal Topics
['residential Apartment Building' 'development Application Appeal' 'conciliation Conference' 'clause 4.6 Written Request' 'height of Buildings Development Standard' 'site Dimensions Development Standard' 'conditions of Consent']
['planning and Environment' 'development Consent' 'land and Environment Court Proceedings'] ['residential Apartment Building' 'development Application Appeal' 'conciliation Conference' 'clause 4.6 Written Request' 'height of Buildings Development Standard' 'site Dimensions Development Standard' 'conditions of Consent']

Case Brief

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Procedural Posture

Class 1 Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Application Da0038/23 / Principal Judgment Following Conciliation Conference Under S 34 of the Land and Environment Court Act 1979 and Agreement Between the Parties

Legal Issues

  1. 1 ["Whether the Court could dispose of the proceedings in accordance with the parties' agreed decision under s 34(3) of the Land and Environment Court Act 1979." 'Whether jurisdictional prerequisites for granting development consent to the amended Development Application were satisfied.' "Whether the Applicant's cl 4.6 written requests adequately justified variations to the height of buildings and site dimensions development standards in the Ku-ring-gai Local Environmental Plan 2015." 'Whether the amended Development Application addressed relevant environmental planning instruments and public submissions.']

Ratio Decidendi

Because the parties' agreed decision was one the Court could make in the proper exercise of its functions, the jurisdictional requirements were satisfied, the amended Development Application was permissible with consent and consistent with relevant planning controls, and the cl 4.6 written requests adequately justified the height and site dimension variations, the appeal was upheld and development consent was granted subject to conditions.

Court Disposition

Appeal upheld; development consent granted to Development Application DA0038/23 as amended, subject to conditions.

Orders

  • ['Leave is granted to the Applicant to amend Development Application DA0038/23 and rely upon the amended plans and documents referred to in condition 1 at Annexure A.' "Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a...