MS Windsor St Pty Ltd v Hawkesbury City Council [2021] NSWLEC 1223

MS Windsor St Pty Ltd v Hawkesbury City Council [2021] NSWLEC 1223

The amended development application breached the 12m maximum height development standard in cl 4.3 of the Hawkesbury Local Environmental Plan 2012. Because the Applicant had not provided a written request under cl 4.6 seeking to vary that standard, the Court could not reach the required states of satisfaction under cl 4.6. The breach could not be cured by a deferred condition because the development to be assessed against the precondition was the development proposed in the application, not a development modified by condition. The Court therefore had no power to grant consent and the appeal was dismissed.

Jurisdiction
Australia
Judgment Date
05 May 2021
Procedural Posture
Class 1 Appeal Against Deemed Refusal of Development Application DA 0547/19 Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 / Principal Judgment After Hearing
Outcome
Appeal dismissed; development application refused; Applicant ordered to pay Respondent's costs thrown away as a result of the amendments as agreed or assessed.
Legal Topics
['shop Top Housing Development' 'height of Buildings Development Standard' 'clause 4.6 Variation Request' 'deferred Commencement Condition' 'costs Thrown Away After Amended Development Application']
['planning and Environment' 'development Consent' 'local Environmental Planning'] ['shop Top Housing Development' 'height of Buildings Development Standard' 'clause 4.6 Variation Request' 'deferred Commencement Condition' 'costs Thrown Away After Amended Development Application']

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Procedural Posture

Class 1 Appeal Against Deemed Refusal of Development Application DA 0547/19 Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the amended development application contravened the 12m maximum building height standard in cl 4.3 of the Hawkesbury Local Environmental Plan 2012.' 'Whether, in the absence of a written request under cl 4.6 of the Hawkesbury Local Environmental Plan 2012, the Court had power to grant development consent despite the height exceedance.' 'Whether the height exceedance could be cured by a deferred condition of consent requiring amended plans.' "Whether the Applicant should pay the Respondent's costs thrown away as a result of amendments to the development application under s 8.15(3) of the Environmental Planning and Assessment Act 1979."]

Ratio Decidendi

The amended development application breached the 12m maximum height development standard in cl 4.3 of the Hawkesbury Local Environmental Plan 2012. Because the Applicant had not provided a written request under cl 4.6 seeking to vary that standard, the Court could not reach the required states of satisfaction under cl 4.6. The breach could not be cured by a deferred condition because the development to be assessed against the precondition was the development proposed in the application, not a development modified by condition. The Court therefore had no power to grant consent and the appeal was dismissed.

Court Disposition

Appeal dismissed; development application refused; Applicant ordered to pay Respondent's costs thrown away as a result of the amendments as agreed or assessed.

Orders

  • ['The Applicant is to pay the Respondent\'s costs "thrown away" as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.' 'The appeal is dismissed.' 'Development Application DA 0547/19 for the demolition of existing structures and...