Pedwood Pty Ltd v Sutherland Shire Council [2021] NSWLEC 1559

Pedwood Pty Ltd v Sutherland Shire Council [2021] NSWLEC 1559

The Court gave effect to the parties' s 34 agreement because the agreed decision to grant conditional development consent to the amended development application was a decision the Court could have made in the proper exercise of its functions. The Court was satisfied that the relevant jurisdictional preconditions were met, including that the cl 4.6 written request adequately addressed the contravention of the 20m height standard, the proposed development was in the public interest and consistent with the relevant objectives, and the applicable SSLEP and SEPP requirements had been addressed.

Jurisdiction
Australia
Judgment Date
27 September 2021
Procedural Posture
Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Following Refusal of Development Application No Da18/1120 / Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979; Parties Filed a Signed S 34(10) Agreement and Sought Orders Disposing of the Proceedings in Accordance With That Agreement
Outcome
Appeal upheld; cl 4.6 variation request upheld; Development Application No DA18/1120 approved subject to conditions; Applicant to pay Respondent's costs as agreed or assessed resulting from leave to rely on the Amended Development Application.
Legal Topics
['development Application' 'shop Top Housing' 'mixed Use Development' 'height of Buildings Development Standard' 'clause 4.6 Variation Request' 'conciliation Conference' 'section 34 Agreement' 'state Environmental Planning Policy No 65—design Quality of Residential Apartment Development' 'state Environmental Planning Policy No 55—remediation of Land' 'state Environmental Planning Policy (infrastructure) 2007' 'basix']
['planning and Environment Law' 'development Consent' 'land and Environment Court Procedure'] ['development Application' 'shop Top Housing' 'mixed Use Development' 'height of Buildings Development Standard' 'clause 4.6 Variation Request' 'conciliation Conference' 'section 34 Agreement' 'state Environmental Planning Policy No 65—design Quality of Residential Apartment Development' 'state Environmental Planning Policy No 55—remediation of Land' 'state Environmental Planning Policy (infrastructure) 2007' 'basix']

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Procedural Posture

Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Following Refusal of Development Application No Da18/1120 / Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979; Parties Filed a Signed S 34(10) Agreement and Sought Orders Disposing of the Proceedings in Accordance With That Agreement

Legal Issues

  1. 1 ["Whether the parties' decision to approve the amended development application 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 the written request under cl 4.6 of the Sutherland Shire Local Environmental Plan 2015 adequately addressed contravention of the height of buildings development standard in cl 4.3.' 'Whether the proposed development was in the public interest because it was consistent with the objectives of the height standard and the B3 Commercial Core zone.' 'Whether relevant jurisdictional prerequisites under the applicable environmental planning instruments were satisfied.']

Ratio Decidendi

The Court gave effect to the parties' s 34 agreement because the agreed decision to grant conditional development consent to the amended development application was a decision the Court could have made in the proper exercise of its functions. The Court was satisfied that the relevant jurisdictional preconditions were met, including that the cl 4.6 written request adequately addressed the contravention of the 20m height standard, the proposed development was in the public interest and consistent with the relevant objectives, and the applicable SSLEP and SEPP requirements had been addressed.

Court Disposition

Appeal upheld; cl 4.6 variation request upheld; Development Application No DA18/1120 approved subject to conditions; Applicant to pay Respondent's costs as agreed or assessed resulting from leave to rely on the Amended Development Application.

Orders

  • ['The request pursuant to clause 4.6 of the Sutherland Shire Local Environment Plan 2015 to vary the development standard for height of buildings contained in clause 4.3 of the Sutherland Shire Local Environment Plan 2015 prepared by Planning Ingenuity dated 2 July 2021 is upheld.' 'Pursuant to s 8.15(3) of the...