El Mir v Georges River Council [2023] NSWLEC 1704

El Mir v Georges River Council [2023] NSWLEC 1704

The Court was satisfied that the parties' agreed decision was one the Court could have made in the proper exercise of its functions because the jurisdictional requirements were met, including that the cl 4.6 written request justified the minor contravention of the minimum lot size standard and the amended development satisfied relevant planning controls. The proceedings therefore had to be disposed of in accordance with the parties' agreement.

Jurisdiction
Australia
Judgment Date
23 November 2023
Procedural Posture
Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Following Refusal of Development Application Da2022/0400 / Mandatory Conciliation Conference Under S 34 AA of the Land and Environment Court Act 1979; Parties Reached Agreement Under S 34(3)
Outcome
Appeal upheld; development consent granted subject to conditions.
Legal Topics
['dual Occupancy Development' 'r2 Low Density Residential Zone' 'minimum Lot Size Development Standard Variation' 'development Application Refusal Appeal' 'section 34 Agreement']
['planning and Environment' 'development Consent' 'land and Environment Court Conciliation'] ['dual Occupancy Development' 'r2 Low Density Residential Zone' 'minimum Lot Size Development Standard Variation' 'development Application Refusal Appeal' 'section 34 Agreement']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Following Refusal of Development Application Da2022/0400 / Mandatory Conciliation Conference Under S 34 AA of the Land and Environment Court Act 1979; Parties Reached Agreement Under S 34(3)

Legal Issues

  1. 1 ["Whether the parties' s 34 agreement was a decision the Court could have made in the proper exercise of its functions." 'Whether contravention of the minimum lot size standard in cl 4.1B of the Georges River Local Environmental Plan 2021 was justified under cl 4.6.' 'Whether relevant environmental planning instruments and jurisdictional requirements were satisfied for development consent to be granted.']

Ratio Decidendi

The Court was satisfied that the parties' agreed decision was one the Court could have made in the proper exercise of its functions because the jurisdictional requirements were met, including that the cl 4.6 written request justified the minor contravention of the minimum lot size standard and the amended development satisfied relevant planning controls. The proceedings therefore had to be disposed of in accordance with the parties' agreement.

Court Disposition

Appeal upheld; development consent granted subject to conditions.

Orders

  • ['The Appeal is upheld.' 'Development consent is granted to Development Application No. DA2022/0400 for demolition works and construction of a dual occupancy at Lot 40 in Deposited Plan 209573, known as 26 Whitegates Avenue, Peakhurst Heights NSW 2210 subject to the conditions of consent at Annexure A.']