Project Flow Pty Ltd v Sutherland Shire Council [2023] NSWLEC 1742

Project Flow Pty Ltd v Sutherland Shire Council [2023] NSWLEC 1742

Because the amended development application was permissible with consent on R3 Medium Density Residential land, relevant flooding, contamination, BASIX, development control plan and landowner consent matters had been addressed, and Council's contentions were resolved by amendments and agreed conditions, there were no jurisdictional impediments to granting consent. The parties' agreed decision was one the Court could have made, so the Court was required under s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with that agreement.

Jurisdiction
Australia
Judgment Date
08 December 2023
Procedural Posture
Class 1 Appeal Against the Deemed Refusal of Development Application Da22/0798 / Conciliation Conference Under S 34 of the Land and Environment Court Act 1979; Parties Reached Agreement and the Court Made Final Orders
Outcome
Appeal upheld; development consent granted subject to conditions; applicant ordered to pay respondent's costs thrown away.
Legal Topics
['development Application' 'multi Dwelling Housing' 'deemed Refusal Appeal' 'conciliation Conference' 'jurisdictional Prerequisites' 'costs Thrown Away']
['planning and Environment Law' 'development Consent'] ['development Application' 'multi Dwelling Housing' 'deemed Refusal Appeal' 'conciliation Conference' 'jurisdictional Prerequisites' 'costs Thrown Away']

Case Brief

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Procedural Posture

Class 1 Appeal Against the Deemed Refusal of Development Application Da22/0798 / Conciliation Conference Under S 34 of the Land and Environment Court Act 1979; Parties Reached Agreement and the Court Made Final Orders

Legal Issues

  1. 1 ['Whether the Court could grant consent to amended Development Application DA22/0798 for demolition of existing structures and construction of multi-dwelling housing for six dwellings over basement parking, swimming pools and associated civil works.' 'Whether the jurisdictional prerequisites under the Environmental Planning and Assessment Act 1979, Environmental Planning and Assessment Regulation 2021 and relevant environmental planning instruments were satisfied.' "Whether the parties' agreement 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."]

Ratio Decidendi

Because the amended development application was permissible with consent on R3 Medium Density Residential land, relevant flooding, contamination, BASIX, development control plan and landowner consent matters had been addressed, and Council's contentions were resolved by amendments and agreed conditions, there were no jurisdictional impediments to granting consent. The parties' agreed decision was one the Court could have made, so the Court was required under s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with that agreement.

Court Disposition

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

Orders

  • ['The appeal is upheld.' 'Development Application DA22/0798, which seeks the demolition of existing structures, and the construction of multi-dwelling housing for 6 dwellings over basement parking, swimming pools and associated civil works on Lots 35 and 36 Deposited Plan 11648, also known as 15-17 Kirkwood Road,...