Abdul-Rahman v City of Canada Bay Council [2023] NSWLEC 1325

Abdul-Rahman v City of Canada Bay Council [2023] NSWLEC 1325

Because the amended development application was permissible with consent, relevant jurisdictional requirements had been considered or satisfied, there was no jurisdictional bar, and the parties' agreed outcome was one the Court could have made in the proper exercise of its functions, s 34(3) of the Land and Environment Court Act 1979 required the Court to make orders upholding the appeal and granting conditional development consent.

Jurisdiction
Australia
Judgment Date
23 June 2023
Procedural Posture
Class 1 Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of Development Application Da2022/0129 / Orders Following S 34 Conciliation Conference and Agreement Between the Parties
Outcome
Appeal upheld; development consent granted subject to conditions in Annexure A as amended on 27 June 2023.
Legal Topics
['development Application' 'childcare Centre' 'deemed Refusal Appeal' 'section 34 Conciliation Conference' "owner's Consent" 'contaminated Land' 'simulated Outdoor Environment' 'development Consent Conditions']
['planning and Environment Law'] ['development Application' 'childcare Centre' 'deemed Refusal Appeal' 'section 34 Conciliation Conference' "owner's Consent" 'contaminated Land' 'simulated Outdoor Environment' 'development Consent Conditions']

Case Brief

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Procedural Posture

Class 1 Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of Development Application Da2022/0129 / Orders Following S 34 Conciliation Conference and Agreement Between the Parties

Legal Issues

  1. 1 ["Whether the parties' agreed decision was a decision 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 jurisdictional prerequisites for granting development consent to DA2022/0129 were satisfied.' "Whether owner's consent was sufficient despite objectors claiming an interest in four parking spaces and access within the site." 'Whether the requirements concerning contamination, childcare centre space, permissibility, demolition, and fire safety were satisfied or could be addressed by conditions.']

Ratio Decidendi

Because the amended development application was permissible with consent, relevant jurisdictional requirements had been considered or satisfied, there was no jurisdictional bar, and the parties' agreed outcome was one the Court could have made in the proper exercise of its functions, s 34(3) of the Land and Environment Court Act 1979 required the Court to make orders upholding the appeal and granting conditional development consent.

Court Disposition

Appeal upheld; development consent granted subject to conditions in Annexure A as amended on 27 June 2023.

Orders

  • ['The appeal is upheld.' 'Development application DA2022/0129 for alterations and additions (including an additional partial storey) to an existing building for the purpose of a childcare centre for 92 children and 19 staff to operate 7am to 6pm Monday to Friday, with 23 parking spaces within the existing basement...