Kougellis v North Sydney Council [2019] NSWLEC 1630

Kougellis v North Sydney Council [2019] NSWLEC 1630

Because the parties' agreed decision was one the Court could make, and because the applicant's cl 4.6 written request adequately justified the height exceedance as an environmental planning response to the existing terrace house envelope, the proposal was in the public interest through consistency with the development standard and zone objectives, and the heritage conservation area impact was satisfactory, the Court granted leave to amend, upheld the appeal and approved Development Application No. 40/18 subject to conditions.

Jurisdiction
Australia
Judgment Date
19 December 2019
Procedural Posture
Class 1 Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. 40/18 / Orders Made Following S 34 Conciliation Conference and Agreement Between the Parties
Outcome
Appeal upheld; Development Application No.40/18 approved subject to conditions of consent at Annexure A.
Legal Topics
['development Application Appeal' 'conciliation Conference' 'clause 4.6 Variation to Height of Buildings Development Standard' 'heritage Conservation Area' 'costs Thrown Away']
['environmental Planning and Assessment' 'development Consent' 'land and Environment Court Procedure'] ['development Application Appeal' 'conciliation Conference' 'clause 4.6 Variation to Height of Buildings Development Standard' 'heritage Conservation Area' 'costs Thrown Away']

Case Brief

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Procedural Posture

Class 1 Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. 40/18 / Orders Made Following S 34 Conciliation Conference and Agreement Between the Parties

Legal Issues

  1. 1 ["Whether the Court should dispose of the proceedings in accordance with the parties' agreement under s 34(3) of the Land and Environment Court Act 1979." 'Whether the jurisdictional prerequisites in cll 4.6(2) and 5.10(4) of the North Sydney Local Environmental Plan 2013 were satisfied before granting development consent.' "Whether the applicant's written request adequately addressed cl 4.6(3) in relation to contravention of the height of buildings development standard." 'Whether the proposed development was in the public interest because it was consistent with the objectives of the height of buildings development standard and the R2 Low Density Residential zone.' 'Whether the proposal satisfactorily addressed its effect on the heritage significance of the Careening Cove Heritage Conservation Area CA10.']

Ratio Decidendi

Because the parties' agreed decision was one the Court could make, and because the applicant's cl 4.6 written request adequately justified the height exceedance as an environmental planning response to the existing terrace house envelope, the proposal was in the public interest through consistency with the development standard and zone objectives, and the heritage conservation area impact was satisfactory, the Court granted leave to amend, upheld the appeal and approved Development Application No. 40/18 subject to conditions.

Court Disposition

Appeal upheld; Development Application No.40/18 approved subject to conditions of consent at Annexure A.

Orders

  • ['The applicant is granted leave to amend the application by relying on the amended plans referred to in condition 1 of the conditions of consent at Annexure A.' "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...