MHN Design Union Pty Limited v Waverley Council [2023] NSWLEC 1272

MHN Design Union Pty Limited v Waverley Council [2023] NSWLEC 1272

The appeal is upheld and consent is granted because the applicant’s written cl 4.6 request justifies the contravention of the height standard, the objectives of that standard and the zone are satisfied, the proposal meets the requirements for environmental planning grounds, and the agreement of parties is a decision the Court could have made in the proper exercise of its functions.

Parties
Applicant: MHN Design Union Pty Limited; Respondent: Waverley Council
Jurisdiction
Australia
Judgment Date
02 June 2023
Procedural Posture
Class 1 Merit Appeal / Final Orders Following Conciliation Conference
Outcome
Appeal upheld, consent granted subject to conditions, partial costs order against applicant
Legal Topics
Development Application, Height of Buildings Development Standard, Existing Use Rights, Planning Instruments, Clause 4.6 Variation, Public Interest, Consent Conditions
Environmental Law Planning Law Development Application Height of Buildings Development Standard Existing Use Rights Planning Instruments Clause 4.6 Variation Public Interest +1 more

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Parties

MHN Design Union Pty Limited

Applicant

Waverley Council

Respondent

Procedural Posture

Class 1 Merit Appeal / Final Orders Following Conciliation Conference

Legal Issues

  1. 1 Whether the contravention of the height of buildings development standard is justified under cl 4.6 of the LEP 2012
  2. 2 Whether the proposal is in the public interest because it is consistent with the objectives of the height standard and zone
  3. 3 Whether consent should be granted to the development application given planning controls and existing use rights

Ratio Decidendi

The appeal is upheld and consent is granted because the applicant’s written cl 4.6 request justifies the contravention of the height standard, the objectives of that standard and the zone are satisfied, the proposal meets the requirements for environmental planning grounds, and the agreement of parties is a decision the Court could have made in the proper exercise of its functions.

Court Disposition

Appeal upheld, consent granted subject to conditions, partial costs order against applicant

Orders

  • The Applicant is to pay the Respondent's costs thrown away by reason of the amendment of the development application, as agreed or assessed, payable within 28 days.
  • The appeal is upheld.