MHN Design Union Pty Limited v Waverley Council (No.2) [2022] NSWLEC 1626

MHN Design Union Pty Limited v Waverley Council (No.2) [2022] NSWLEC 1626

Following completion of the detailed site investigation and consideration of the DSI, Geotechnical Report, stormwater management plan and Condition 30, the Court had sufficient material to conclude that the proposal satisfactorily addressed the matters in cl 6.2(3) of the WLEP and that the works were not likely to lower the water table on adjacent class 4 land under cl 6.1 of the WLEP. It was therefore appropriate to uphold the appeal and grant development consent under s 4.16 of the Environmental Planning and Assessment Act 1979.

Jurisdiction
Australia
Judgment Date
11 November 2022
Procedural Posture
Class 1 Development Application Appeal / Final Orders Following Preliminary Judgment and Detailed Site Investigation
Outcome
Appeal upheld and development consent granted subject to conditions.
Legal Topics
['development Application' 'shop Top Housing Development' 'heritage Conservation' 'design Excellence' 'remediation of Land' 'contaminated Land' 'acid Sulfate Soils']
['planning and Environment Law'] ['development Application' 'shop Top Housing Development' 'heritage Conservation' 'design Excellence' 'remediation of Land' 'contaminated Land' 'acid Sulfate Soils']

Case Brief

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Procedural Posture

Class 1 Development Application Appeal / Final Orders Following Preliminary Judgment and Detailed Site Investigation

Legal Issues

  1. 1 ['Whether the Court had sufficient material to determine whether the land is contaminated and suitable for the proposed development, or will be suitable after remediation, under s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021.' 'Whether the proposal satisfactorily addressed the matters in cl 6.2(3) of the Waverley Local Environmental Plan 2012 concerning fill or soil to be excavated for the proposed basement.' 'Whether the works were likely to lower the water table on adjacent class 4 acid sulfate soil land under cl 6.1 of the Waverley Local Environmental Plan 2012.' 'Whether development consent should be granted under s 4.16 of the Environmental Planning and Assessment Act 1979.']

Ratio Decidendi

Following completion of the detailed site investigation and consideration of the DSI, Geotechnical Report, stormwater management plan and Condition 30, the Court had sufficient material to conclude that the proposal satisfactorily addressed the matters in cl 6.2(3) of the WLEP and that the works were not likely to lower the water table on adjacent class 4 land under cl 6.1 of the WLEP. It was therefore appropriate to uphold the appeal and grant development consent under s 4.16 of the Environmental Planning and Assessment Act 1979.

Court Disposition

Appeal upheld and development consent granted subject to conditions.

Orders

  • ['The appeal is upheld.' 'Development Application No 305/2021 seeking consent for alterations and additions to an existing building, including the demolition of the rear section of the outbuilding and construction of a new five storey shop top housing development to the rear comprising a basement level, new ground...