Proxima Venturo Pty Ltd ATF Proxima Venturo Fund v Ku-ring-gai Council [2024] NSWLEC 1120

Proxima Venturo Pty Ltd ATF Proxima Venturo Fund v Ku-ring-gai Council [2024] NSWLEC 1120

Because the parties reached agreement in a s 34 conciliation, the amended development application satisfied the relevant jurisdictional preconditions, and the cl 4.6 variation request adequately addressed the required matters, the parties' decision to uphold the appeal and grant development consent subject to conditions was within power under s 34(3) of the Land and Environment Court Act 1979.

Jurisdiction
Australia
Judgment Date
18 March 2024
Procedural Posture
Class 1 Appeal Concerning Refusal of Development Application No. Da0437/22 / Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979; Final Orders Made by Agreement of the Parties
Outcome
Appeal upheld; development consent granted to the amended development application subject to conditions in Annexure A; cl 4.6 written request upheld; applicant ordered to pay costs thrown away.
Legal Topics
['development Application Refusal Appeal' 'residential Flat Building' 'in Fill Affordable Housing' 'clause 4.6 Variation Request' 'section 34 Conciliation Agreement' 'costs Thrown Away From Amended Development Application']
['planning and Environment' 'development Consent' 'land and Environment Court Class 1'] ['development Application Refusal Appeal' 'residential Flat Building' 'in Fill Affordable Housing' 'clause 4.6 Variation Request' 'section 34 Conciliation Agreement' 'costs Thrown Away From Amended Development Application']

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Procedural Posture

Class 1 Appeal Concerning Refusal of Development Application No. Da0437/22 / Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979; Final Orders Made by Agreement of the Parties

Legal Issues

  1. 1 ["Whether the parties' agreement to uphold the appeal and grant development consent 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 there was any jurisdictional impediment to granting development consent to the amended development application.' 'Whether the cl 4.6 written request adequately justified variation of the development standard in cl 6.6(2) of Ku-ring-gai Local Environmental Plan 2015.' 'Whether the amended development application satisfied relevant environmental planning instruments and other preconditions to consent.']

Ratio Decidendi

Because the parties reached agreement in a s 34 conciliation, the amended development application satisfied the relevant jurisdictional preconditions, and the cl 4.6 variation request adequately addressed the required matters, the parties' decision to uphold the appeal and grant development consent subject to conditions was within power under s 34(3) of the Land and Environment Court Act 1979.

Court Disposition

Appeal upheld; development consent granted to the amended development application subject to conditions in Annexure A; cl 4.6 written request upheld; applicant ordered to pay costs thrown away.

Orders

  • ['Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent consent authority that are thrown away as a result of amending the development application, in the amount of $17,500 within 14 days from the date of these orders.' "The applicant's...