MHN Design Union Pty Ltd v Woollahra Municipal Council [2023] NSWLEC 1529

MHN Design Union Pty Ltd v Woollahra Municipal Council [2023] NSWLEC 1529

After considering the applicable material, including zoning, public notification and submissions, earthworks, BASIX, contamination, Sydney Harbour-related biodiversity and conservation considerations, and agreed conditions, the Court was satisfied that the parties' agreed decision to grant development consent was a decision the Court could make in the proper exercise of its functions. Section 34(3) of the Land and Environment Court Act 1979 therefore required the Court to dispose of the proceedings in accordance with the agreement, resulting in the appeal being upheld and development consent granted subject to Annexure A conditions.

Jurisdiction
Australia
Judgment Date
26 September 2023
Procedural Posture
Class 1 Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 From a Deemed Refusal of Development Application Da324/2022/1 / Orders Following Conciliation Conference Under S 34 of the Land and Environment Court Act 1979
Outcome
Appeal upheld; development consent granted subject to conditions; Applicant ordered to pay the Respondent's costs thrown away.
Legal Topics
['development Application' 'residential Flat Building' 'deemed Refusal Appeal' 'conciliation Agreement' 'development Consent' 'costs Thrown Away']
['planning and Environment Law'] ['development Application' 'residential Flat Building' 'deemed Refusal Appeal' 'conciliation Agreement' 'development Consent' 'costs Thrown Away']

Case Brief

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Procedural Posture

Class 1 Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 From a Deemed Refusal of Development Application Da324/2022/1 / Orders Following Conciliation Conference Under S 34 of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether the agreed decision to grant development consent subject to conditions 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 appeal concerning Development Application DA324/2022/1 should be upheld and development consent granted.' "Whether the Applicant should pay the Respondent's costs thrown away under s 8.15(3) of the Environmental Planning and Assessment Act 1979."]

Ratio Decidendi

After considering the applicable material, including zoning, public notification and submissions, earthworks, BASIX, contamination, Sydney Harbour-related biodiversity and conservation considerations, and agreed conditions, the Court was satisfied that the parties' agreed decision to grant development consent was a decision the Court could make in the proper exercise of its functions. Section 34(3) of the Land and Environment Court Act 1979 therefore required the Court to dispose of the proceedings in accordance with the agreement, resulting in the appeal being upheld and development consent granted subject to Annexure A conditions.

Court Disposition

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

Orders

  • ['The Applicant is to pay the Respondents costs thrown away, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of $6,000 within 28 days.' 'The appeal is upheld.' 'Development Application DA324/2022/1, for a residential flat building at 74 Bellevue Road, Bellevue Hill, (otherwise...