Parking Station Pty Ltd v Bayside Council [2019] NSWLEC 1268

Parking Station Pty Ltd v Bayside Council [2019] NSWLEC 1268

The Court could give effect to the parties' s 34 agreement because the Commissioner was satisfied that the decision was one the Court could make in the proper exercise of its functions, and the necessary preconditions to consent were met. The amended clause 4.6 request demonstrated that compliance with the maximum FSR standard was unreasonable or unnecessary, that sufficient environmental planning grounds justified the contravention, that the development was in the public interest and consistent with the B5 zone objectives, and that the Secretary's concurrence could be assumed. The appeal was therefore upheld and the amended development application approved subject to conditions.

Jurisdiction
Australia
Judgment Date
14 June 2019
Procedural Posture
Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of a Development Application / Orders Made Following S 34 Conciliation Conference and Agreement Between the Parties
Outcome
Appeal upheld; clause 4.6 request upheld; amended development application approved subject to conditions.
Legal Topics
['development Application' 'mixed Use Development' 'conciliation Conference' 'clause 4.6 Variation' 'floor Space Ratio' 'development Consent']
['planning and Environment Law'] ['development Application' 'mixed Use Development' 'conciliation Conference' 'clause 4.6 Variation' 'floor Space Ratio' 'development Consent']

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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 a Development Application / Orders Made Following S 34 Conciliation Conference and Agreement Between the Parties

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 clause 4.6 request justified variation of the floor space ratio development standard in cl 4.4 of the Botany Bay Local Environmental Plan 2013.' 'Whether the preconditions to granting development consent for the amended mixed use development had been met.']

Ratio Decidendi

The Court could give effect to the parties' s 34 agreement because the Commissioner was satisfied that the decision was one the Court could make in the proper exercise of its functions, and the necessary preconditions to consent were met. The amended clause 4.6 request demonstrated that compliance with the maximum FSR standard was unreasonable or unnecessary, that sufficient environmental planning grounds justified the contravention, that the development was in the public interest and consistent with the B5 zone objectives, and that the Secretary's concurrence could be assumed. The appeal was therefore upheld and the amended development application approved subject to conditions.

Court Disposition

Appeal upheld; clause 4.6 request upheld; amended development application approved subject to conditions.

Orders

  • ['The applicant is granted leave to rely upon the amended plans and documents contained at Annexure A.' "The applicant is to pay the Respondent the amount of $45,000.00 for Council's costs thrown away under section 8.15 of the Environmental Planning and Assessment Act 1979 within 56 days from date of Notice of...