Morfosis Architects Pty Ltd v Liverpool City Council [2020] NSWLEC 1435

Morfosis Architects Pty Ltd v Liverpool City Council [2020] NSWLEC 1435

Because the amended residential flat building was permissible in the R4 – High Density Residential Zone, the cl 4.6 written request adequately justified the height contravention, no other development standards were breached, contamination had been considered, and an updated BASIX Certificate supported the application, the agreed decision to grant leave to amend and approve the development application subject to conditions was one the Court could make in the proper exercise of its functions; s 34(3) therefore required the proceedings to be disposed of in accordance with that agreement.

Jurisdiction
Australia
Judgment Date
18 September 2020
Procedural Posture
Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Concerning a Development Application / Orders Following Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979; Agreement Reached Under S 34(3)
Outcome
Appeal upheld; development application approved subject to conditions in Annexure A.
Legal Topics
['development Application' 'residential Flat Building' 'development Consent' 'height Development Standard' 'clause 4.6 Written Request' 'conciliation Conference' 'state Environmental Planning Policy No 55 – Remediation of Land' 'basix Certificate']
['planning and Environment Law' 'land and Environment Court Proceedings'] ['development Application' 'residential Flat Building' 'development Consent' 'height Development Standard' 'clause 4.6 Written Request' 'conciliation Conference' 'state Environmental Planning Policy No 55 – Remediation of Land' 'basix Certificate']

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Procedural Posture

Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Concerning a Development Application / Orders Following Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979; Agreement Reached Under S 34(3)

Legal Issues

  1. 1 ['Whether leave should be granted to amend the development application and rely on amended plans.' 'Whether the Court could make the agreed decision to grant development consent subject to conditions in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979.' 'Whether consent should be granted notwithstanding contravention of the height development standard in cl 4.3 of the Liverpool Local Environmental Plan 2008.' 'Whether relevant jurisdictional preconditions concerning permissibility, contamination and BASIX requirements were met.']

Ratio Decidendi

Because the amended residential flat building was permissible in the R4 – High Density Residential Zone, the cl 4.6 written request adequately justified the height contravention, no other development standards were breached, contamination had been considered, and an updated BASIX Certificate supported the application, the agreed decision to grant leave to amend and approve the development application subject to conditions was one the Court could make in the proper exercise of its functions; s 34(3) therefore required the proceedings to be disposed of in accordance with that agreement.

Court Disposition

Appeal upheld; development application approved subject to conditions in Annexure A.

Orders

  • ['The Applicant is granted leave to amend the development application and rely upon the following plans in the proceedings referred to at condition 1 in Annexure A.' 'The appeal is upheld.' 'Development application DA-488/2019 seeking the demolition of existing structures, removal of trees and construction of 3-5...