Arrage v Inner West Council [2022] NSWLEC 1031

Arrage v Inner West Council [2022] NSWLEC 1031

The Court was satisfied that the parties' s 34 decision was one the Court could have made in the proper exercise of its functions. The cl 4.6 requests justified variation of the height and floor space ratio standards because the standards were not relevant in the circumstances of the existing consent, there were sufficient environmental planning grounds, the development was consistent with the objectives of the standards and B4 zone, and the public interest requirement was met. Other relevant planning controls, including MLEP provisions, SEPP 65, SEPP Infrastructure and BASIX, did not preclude consent. Accordingly, s 34(3) required the Court to dispose of the proceedings in accordance...

Jurisdiction
Australia
Judgment Date
24 January 2022
Procedural Posture
Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Following Deemed Refusal of Development Application No 2021/0571 / Conciliation Conference Under S 34 of the Land and Environment Court Act 1979; Parties Reached Agreement and Sought Orders Granting Conditional Development Consent
Outcome
Appeal upheld; clause 4.6 written requests upheld; development consent granted subject to conditions in Annexure A.
Legal Topics
['shop Top Housing Development' 'residential Apartment Development' 'clause 4.6 Variation Requests' 'height of Buildings Development Standard' 'floor Space Ratio Development Standard' 'section 34 Conciliation Agreement' 'design Quality and Apartment Design Guide' 'basix' 'development Adjacent to Rail Corridor']
['planning and Environment Law' 'development Consent' 'land and Environment Court Class 1 Proceedings'] ['shop Top Housing Development' 'residential Apartment Development' 'clause 4.6 Variation Requests' 'height of Buildings Development Standard' 'floor Space Ratio Development Standard' 'section 34 Conciliation Agreement' 'design Quality and Apartment Design Guide' 'basix' 'development Adjacent to Rail Corridor']

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Procedural Posture

Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Following Deemed Refusal of Development Application No 2021/0571 / Conciliation Conference Under S 34 of the Land and Environment Court Act 1979; Parties Reached Agreement and Sought Orders Granting Conditional Development Consent

Legal Issues

  1. 1 ["Whether the parties' decision in the s 34 agreement 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 clause 4.6 written requests justified contravention of the height of buildings standard in cl 4.3 and floor space ratio standard in cl 4.4 of the Marrickville Local Environmental Plan 2011.' 'Whether the proposed development satisfied relevant jurisdictional prerequisites under applicable environmental planning instruments, including MLEP, SEPP 65, SEPP Infrastructure and BASIX SEPP.' 'Whether conditional development consent should be granted to Development Application DA2021/0571.']

Ratio Decidendi

The Court was satisfied that the parties' s 34 decision was one the Court could have made in the proper exercise of its functions. The cl 4.6 requests justified variation of the height and floor space ratio standards because the standards were not relevant in the circumstances of the existing consent, there were sufficient environmental planning grounds, the development was consistent with the objectives of the standards and B4 zone, and the public interest requirement was met. Other relevant planning controls, including MLEP provisions, SEPP 65, SEPP Infrastructure and BASIX, did not preclude consent. Accordingly, s 34(3) required the Court to dispose of the proceedings in accordance...

Court Disposition

Appeal upheld; clause 4.6 written requests upheld; development consent granted subject to conditions in Annexure A.

Orders

  • ['The Court noted that the Applicant amended the application with the consent of the Respondent Council pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000.' 'The Court noted that the Applicant uploaded the amended application onto the NSW planning portal on 22 December 2021 comprising...