Metro St Ives Pty Ltd v Ku-ring-gai Council [2023] NSWLEC 1287

Metro St Ives Pty Ltd v Ku-ring-gai Council [2023] NSWLEC 1287

Because the amended proposal was permissible with consent on the R3 Medium Density Residential zoned site, satisfied the relevant LEP requirements for minimum allotment size, earthworks, stormwater and water sensitive urban design, and site suitability, and because the parties' agreement was a decision the Court could have made in the proper exercise of its functions, the Court disposed of the proceedings in accordance with the agreement by upholding the appeal and granting development consent subject to conditions.

Jurisdiction
Australia
Judgment Date
09 June 2023
Procedural Posture
Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. 0270/22 / Orders Following S 34 Conciliation Conference Agreement
Outcome
Appeal upheld; leave granted to amend the development application; development consent granted subject to conditions; Applicant ordered to pay Respondent's thrown away costs.
Legal Topics
['multi Dwelling Housing Development' 'conciliation Conference' 'agreement Between the Parties' 'jurisdictional Preconditions' 'earthworks' 'stormwater and Water Sensitive Urban Design' 'site Suitability']
['environmental Planning and Assessment' 'development Consent' 'land and Environment Court Procedure'] ['multi Dwelling Housing Development' 'conciliation Conference' 'agreement Between the Parties' 'jurisdictional Preconditions' 'earthworks' 'stormwater and Water Sensitive Urban Design' 'site Suitability']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. 0270/22 / Orders Following S 34 Conciliation Conference Agreement

Legal Issues

  1. 1 ["Whether the parties' agreed decision 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 jurisdictional preconditions to the grant of development consent were satisfied, including permissibility in the R3 Medium Density Residential zone, minimum allotment size, earthworks, stormwater and water sensitive urban design, and site suitability.' 'Whether Development Application No. 0270/22, as amended, should be approved for demolition of existing structures and construction of a multi dwelling housing development containing 25 dwellings, basement parking and associated works.']

Ratio Decidendi

Because the amended proposal was permissible with consent on the R3 Medium Density Residential zoned site, satisfied the relevant LEP requirements for minimum allotment size, earthworks, stormwater and water sensitive urban design, and site suitability, and because the parties' agreement was a decision the Court could have made in the proper exercise of its functions, the Court disposed of the proceedings in accordance with the agreement by upholding the appeal and granting development consent subject to conditions.

Court Disposition

Appeal upheld; leave granted to amend the development application; development consent granted subject to conditions; Applicant ordered to pay Respondent's thrown away costs.

Orders

  • ['The Applicant is granted leave to amend Development Application No. 0270/22 in accordance with the schedule of plans referred to in Condition 1 of the conditions of consent at Annexure A.' 'The appeal is upheld.' 'The Applicant is to pay those costs of the Respondent that have been thrown away as a result of the...