Nicholas Tang Holdings Pty Limited v Waverley Council [2020] NSWLEC 1072

Nicholas Tang Holdings Pty Limited v Waverley Council [2020] NSWLEC 1072

The Court upheld the appeal and approved the development application because the parties reached an agreement under s 34(3), the Court was satisfied the agreed decision was one it could make in the proper exercise of its functions, the clause 4.6 written requests for the height and FSR contraventions were well founded, and all pre-conditions to the granting of consent had been met.

Jurisdiction
Australia
Judgment Date
06 March 2020
Procedural Posture
Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Application No. 40/2019 / Orders Following Conciliation Conference and Agreement Under S 34(3) of the Land and Environment Court Act 1979
Outcome
Appeal upheld; Development Applicant No. 40/2019 approved subject to conditions.
Legal Topics
['development Application' 'residential Flat Building' 'conciliation Conference' 'agreement Between the Parties' 'clause 4.6 Variation Request' 'maximum Height Development Standard' 'floor Space Ratio Development Standard' 'affordable Rental Housing Contribution']
['environmental Planning and Assessment' 'land and Environment'] ['development Application' 'residential Flat Building' 'conciliation Conference' 'agreement Between the Parties' 'clause 4.6 Variation Request' 'maximum Height Development Standard' 'floor Space Ratio Development Standard' 'affordable Rental Housing Contribution']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Application No. 40/2019 / Orders Following Conciliation Conference and Agreement Under S 34(3) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the Court could make orders giving effect to the parties' agreement under s 34(3) of the Land and Environment Court Act 1979." "Whether the applicant's clause 4.6 written requests justified contraventions of the maximum height and floor space ratio development standards in the Waverley Local Environmental Plan 2012." 'Whether all pre-conditions to the grant of development consent had been met.']

Ratio Decidendi

The Court upheld the appeal and approved the development application because the parties reached an agreement under s 34(3), the Court was satisfied the agreed decision was one it could make in the proper exercise of its functions, the clause 4.6 written requests for the height and FSR contraventions were well founded, and all pre-conditions to the granting of consent had been met.

Court Disposition

Appeal upheld; Development Applicant No. 40/2019 approved subject to conditions.

Orders

  • ['The Applicant is granted leave to rely on the amended Class 1 Application, a copy of which is annexed and marked "A".' 'The Applicant is granted leave to rely on the amended plans, copies of which are annexed and marked "B for the purposes of the development application.' "The Applicant is to pay the Respondent's...