Sutton v North Sydney Council [2022] NSWLEC 1499

Sutton v North Sydney Council [2022] NSWLEC 1499

The parties' agreed decision was one the Court could have made in the proper exercise of its functions. The applicants' cl 4.6 written request adequately addressed the statutory requirements because the height standard objectives were achieved notwithstanding the breach, sufficient environmental planning grounds...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
21 September 2022
Procedural Posture
Class 1 Appeal Against Deemed Refusal of Development Application Da459/21 Under S 8.7 of the Environmental Planning and Assessment Act 1979 / Conciliation Conference Under S 34 AA of the Land and Environment Court Act 1979; Parties Reached Agreement and the Court Made Orders Under S 34(3)
Outcome
The cl 4.6 written request was upheld, the appeal was upheld, and development application DA 459/21 was determined by grant of consent subject to the conditions in Annexure A.
Legal Topics
['deemed Refusal Appeal' 'development Application for Dual Occupancy' 'clause 4.6 Variation Request' 'building Height Development Standard' 'conciliation Conference Agreement' 'heritage Conservation Area' 'basix' 'biodiversity Impacts' 'contamination' 'development Control Plan Compliance']
['planning and Environment' 'development Consent' 'land and Environment Court Procedure'] ['deemed Refusal Appeal' 'development Application for Dual Occupancy' 'clause 4.6 Variation Request' 'building Height Development Standard' 'conciliation Conference Agreement' 'heritage Conservation Area' 'basix' 'biodiversity Impacts' 'contamination' 'development Control Plan Compliance']

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Procedural Posture

Class 1 Appeal Against Deemed Refusal of Development Application Da459/21 Under S 8.7 of the Environmental Planning and Assessment Act 1979 / Conciliation Conference Under S 34 AA of the Land and Environment Court Act 1979; Parties Reached Agreement and the Court Made Orders Under S 34(3)

Legal Issues

  1. 1 ["Whether the parties' agreed decision was one the Court could have made in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979." "Whether the applicants' written request under cl 4.6 of North Sydney Local Environmental Plan 2013 adequately justified variation of the building height development standard in cl 4.3(2)." 'Whether the proposed amended development satisfied relevant jurisdictional pre-requisites, including owner’s consent, heritage, dual occupancy, earthworks, BASIX, biodiversity, contamination, DCP and notification matters.']

Ratio Decidendi

The parties' agreed decision was one the Court could have made in the proper exercise of its functions. The applicants' cl 4.6 written request adequately addressed the statutory requirements because the height standard objectives were achieved notwithstanding the breach, sufficient environmental planning grounds justified the contravention arising from artificial site levels, and the amended development was consistent with the height standard objectives and the R2 Low Density Zone objectives. Other relevant jurisdictional pre-requisites were satisfied, so the Court was required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with the...

Court Disposition

The cl 4.6 written request was upheld, the appeal was upheld, and development application DA 459/21 was determined by grant of consent subject to the conditions in Annexure A.

Orders

  • ["The applicants' written request pursuant to cl 4.6 North Sydney Local Environmental Plan 2013 (LEP 2013) seeking a variation to the development standard for height set out in cl 4.3(2) of LEP 2013 is upheld." 'The appeal is upheld.' "Development application DA 459/21 for construction of a three-storey dual...