Prince Building Pty Ltd v Cumberland Council [2022] NSWLEC 1707

Prince Building Pty Ltd v Cumberland Council [2022] NSWLEC 1707

Because the parties reached an agreement that the Court could make in the proper exercise of its functions, and the Court was satisfied that the amended development application had owner consent, notification had been addressed, the development was permissible with consent in the B6 Enterprise Corridor zone, the cl 4.6 written request adequately justified the minor height exceedance, and relevant provisions of the Cumberland Local Environmental Plan 2021 and applicable State Environmental Planning Policies had been considered and addressed by reports and conditions, the Court upheld the appeal and granted development consent subject to conditions.

Jurisdiction
Australia
Judgment Date
16 December 2022
Procedural Posture
Class 1 Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application Da2020/0385 / Orders Made Following Agreement Reached at Conciliation Conference Under S 34 of the Land and Environment Court Act 1979
Outcome
Appeal upheld; development consent granted to Development Application DA2020/0385 as amended, subject to conditions.
Legal Topics
['mixed Use Development' 'development Application Appeal' 'conciliation Agreement' 'variation of Height of Buildings Development Standard' 'clause 4.6 Written Request' 'hotel and Office Development' 'environmental Planning Instruments']
['planning and Environment' 'development Consent' 'land and Environment Court Procedure'] ['mixed Use Development' 'development Application Appeal' 'conciliation Agreement' 'variation of Height of Buildings Development Standard' 'clause 4.6 Written Request' 'hotel and Office Development' 'environmental Planning Instruments']

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Procedural Posture

Class 1 Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application Da2020/0385 / Orders Made Following Agreement Reached at Conciliation Conference Under S 34 of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the Court could dispose of the proceedings in accordance with the parties' agreement under s 34(3) of the Land and Environment Court Act 1979." 'Whether Development Application DA2020/0385, as amended, satisfied the jurisdictional prerequisites for the grant of development consent under s 4.16 of the Environmental Planning and Assessment Act 1979.' "Whether the Applicant's written request under cl 4.6 of the Cumberland Local Environmental Plan 2021 adequately justified variation of the height of buildings development standard in cl 4.3 of the Cumberland Local Environmental Plan 2021."]

Ratio Decidendi

Because the parties reached an agreement that the Court could make in the proper exercise of its functions, and the Court was satisfied that the amended development application had owner consent, notification had been addressed, the development was permissible with consent in the B6 Enterprise Corridor zone, the cl 4.6 written request adequately justified the minor height exceedance, and relevant provisions of the Cumberland Local Environmental Plan 2021 and applicable State Environmental Planning Policies had been considered and addressed by reports and conditions, the Court upheld the appeal and granted development consent subject to conditions.

Court Disposition

Appeal upheld; development consent granted to Development Application DA2020/0385 as amended, subject to conditions.

Orders

  • ['Leave is granted to the Applicant to amend Development Application DA2020/0385 and rely upon amended plans and documents referred to in condition 2 at Annexure A.' "The Applicant's written request, pursuant to cl 4.6 of the Cumberland Local Environmental Plan 2021 (CLEP), seeking to vary the development standard...