Park Hermitage Pty Ltd v Inner West Council [2023] NSWLEC 1174

Park Hermitage Pty Ltd v Inner West Council [2023] NSWLEC 1174

Because the amended development application satisfied the identified jurisdictional prerequisites, the cl 4.6 written requests justified the height and floor space ratio variations, and the agreed outcome was a decision the Court could have made in the proper exercise of its functions, 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 parties' agreement by upholding the appeal and granting development consent subject to conditions.

Jurisdiction
Australia
Judgment Date
14 April 2023
Procedural Posture
Class 1 Development Application Appeal From Deemed Refusal / Section 34 Conciliation Conference; Agreement Between the Parties; Final Orders
Outcome
Appeal upheld; development consent granted subject to conditions; cl 4.6 variation requests upheld; applicant ordered to pay respondent's costs thrown away.
Legal Topics
['development Consent' 'deemed Refusal' 'conciliation Conference' 'clause 4.6 Variation Request' 'height of Buildings Development Standard' 'floor Space Ratio Development Standard' 'residential Flat Building' 'heritage Conservation Area']
['environmental Planning and Development' 'land and Environment Court Proceedings'] ['development Consent' 'deemed Refusal' 'conciliation Conference' 'clause 4.6 Variation Request' 'height of Buildings Development Standard' 'floor Space Ratio Development Standard' 'residential Flat Building' 'heritage Conservation Area']

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Procedural Posture

Class 1 Development Application Appeal From Deemed Refusal / Section 34 Conciliation Conference; Agreement Between the Parties; Final Orders

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 jurisdictional prerequisites to grant development consent under s 4.16 of the Environmental Planning and Assessment Act 1979 were satisfied.' "Whether the applicant's written request under Marrickville Local Environmental Plan 2011 cl 4.6 justified variation of the height of buildings development standard in cl 4.3." "Whether the applicant's written request under Marrickville Local Environmental Plan 2011 cl 4.6 justified variation of the floor space ratio development standard in cl 4.4."]

Ratio Decidendi

Because the amended development application satisfied the identified jurisdictional prerequisites, the cl 4.6 written requests justified the height and floor space ratio variations, and the agreed outcome was a decision the Court could have made in the proper exercise of its functions, 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 parties' agreement by upholding the appeal and granting development consent subject to conditions.

Court Disposition

Appeal upheld; development consent granted subject to conditions; cl 4.6 variation requests upheld; applicant ordered to pay respondent's costs thrown away.

Orders

  • ['Leave is granted to the applicant to amend Development Application DA/2022/0308, to rely on the amended plans and documents specified in Annexure A.' "Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the respondent's costs thrown away in the sum of $3,500...