Nelson Architecture Pty Ltd v Georges River Council [2018] NSWLEC 1614

Nelson Architecture Pty Ltd v Georges River Council [2018] NSWLEC 1614

Because the parties' agreed decision to uphold the appeal and grant consent with conditions was a decision the Court could have made in the proper exercise of its functions, and because the amended development satisfied the relevant planning prerequisites including the cl 4.6 variation to the height standard, the Court was required to dispose of the proceedings in accordance with the parties' agreement under s 34(3) of the Land and Environment Court Act 1979.

Jurisdiction
Australia
Judgment Date
29 November 2018
Procedural Posture
Class 1 Appeal Against Deemed Refusal of a Development Application / Orders Following Conciliation Conference and Agreement Between the Parties
Outcome
Appeal upheld; development application approved subject to conditions; no costs order made.
Legal Topics
['development Application' 'deemed Refusal Appeal' 'conciliation Conference' 'agreement Between Parties' 'clause 4.6 Variation Request' 'building Height Development Standard' 'flood Planning' 'foreshore Building Line']
['planning and Environment Law' 'development Consent'] ['development Application' 'deemed Refusal Appeal' 'conciliation Conference' 'agreement Between Parties' 'clause 4.6 Variation Request' 'building Height Development Standard' 'flood Planning' 'foreshore Building Line']

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Procedural Posture

Class 1 Appeal Against Deemed Refusal of a Development Application / Orders Following Conciliation Conference and Agreement Between the Parties

Legal Issues

  1. 1 ["Whether the proceedings should be disposed of in accordance with the parties' agreement under s 34(3) of the Land and Environment Court Act 1979." 'Whether the Court could grant consent to Development Application No. DA 2017/0571 as amended, subject to conditions, in the proper exercise of its functions.' 'Whether the proposed non-compliance with the height requirement in cl 4.3 of the Kogarah Local Environmental Plan 2012 was justified by a cl 4.6 written request.']

Ratio Decidendi

Because the parties' agreed decision to uphold the appeal and grant consent with conditions was a decision the Court could have made in the proper exercise of its functions, and because the amended development satisfied the relevant planning prerequisites including the cl 4.6 variation to the height standard, the Court was required to dispose of the proceedings in accordance with the parties' agreement under s 34(3) of the Land and Environment Court Act 1979.

Court Disposition

Appeal upheld; development application approved subject to conditions; no costs order made.

Orders

  • ['The Applicant is granted leave to amend the development application by substituting the plans and documents listed in order 1 as the plans and documents relied upon for the purpose of the development application, as set out under condition 1 of the conditions of consent annexed and marked "A".' 'The appeal is...