Phenix Property Group Pty Ltd v Canterbury-Bankstown Council [2024] NSWLEC 1037

Phenix Property Group Pty Ltd v Canterbury-Bankstown Council [2024] NSWLEC 1037

The Commissioner was satisfied that the agreed decision was one the Court could make in the proper exercise of its functions because the application had owner consent, notification had occurred and the submission was considered, the site was suitable for the proposed purpose, the BASIX, classified road, design quality, zoning, DCP and other planning controls were addressed, the cl 4.6 height variation tests were met, and no jurisdictional impediment was identified. The proceedings were therefore disposed of in accordance with the parties' agreement by upholding the appeal and granting development consent subject to conditions, with costs thrown away payable by the Applicant.

Jurisdiction
Australia
Judgment Date
06 February 2024
Procedural Posture
Class 1 Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of Development Application No. 496/2022 / Conciliation Conference Under S 34 of the Land and Environment Court Act 1979; Parties Reached Agreement for Grant of Consent Subject to Conditions
Outcome
Appeal upheld; development consent granted to Development Application No. 496/2022 as amended; Applicant ordered to pay Respondent's costs thrown away by the amendment.
Legal Topics
['development Application' 'deemed Refusal Appeal' 'mixed Use Development' 'conciliation Conference' 'development Consent' 'height of Buildings Development Standard Variation' 'costs Thrown Away']
['planning and Environment' 'land and Environment Court'] ['development Application' 'deemed Refusal Appeal' 'mixed Use Development' 'conciliation Conference' 'development Consent' 'height of Buildings Development Standard Variation' 'costs Thrown Away']

Case Brief

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Procedural Posture

Class 1 Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of Development Application No. 496/2022 / Conciliation Conference Under S 34 of the Land and Environment Court Act 1979; Parties Reached Agreement for Grant of Consent Subject to Conditions

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 development consent could be granted for Development Application No. 496/2022 as amended' 'Whether the cl 4.6 request to vary the height of buildings development standard under Canterbury Local Environmental Plan 2012 should be accepted' 'Whether the statutory planning controls, including contamination, BASIX, transport, design quality, zoning and development control plan considerations, permitted the grant of consent']

Ratio Decidendi

The Commissioner was satisfied that the agreed decision was one the Court could make in the proper exercise of its functions because the application had owner consent, notification had occurred and the submission was considered, the site was suitable for the proposed purpose, the BASIX, classified road, design quality, zoning, DCP and other planning controls were addressed, the cl 4.6 height variation tests were met, and no jurisdictional impediment was identified. The proceedings were therefore disposed of in accordance with the parties' agreement by upholding the appeal and granting development consent subject to conditions, with costs thrown away payable by the Applicant.

Court Disposition

Appeal upheld; development consent granted to Development Application No. 496/2022 as amended; Applicant ordered to pay Respondent's costs thrown away by the amendment.

Orders

  • ["The Applicant is to pay the Respondent's costs thrown away by the amendment of the development application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $6,000 within 28 days." 'The appeal is upheld.' "Development consent is granted to Development Application No....