RNB Glenayr Pty Ltd v Waverley Council [2021] NSWLEC 1139

RNB Glenayr Pty Ltd v Waverley Council [2021] NSWLEC 1139

Because the parties reached a s 34 agreement and the Commissioner was satisfied that the agreed decision was one the Court could make in the proper exercise of its functions, including satisfaction of the applicable statutory and planning requirements and the cl 4.6 requirements for the height and FSR contraventions, the Court was required to dispose of the proceedings in accordance with the parties' decision and approve the development application subject to conditions.

Jurisdiction
Australia
Judgment Date
17 March 2021
Procedural Posture
Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Application Da/296/2019 / Final Orders Following S 34 Conciliation Conference and Agreement Between the Parties
Outcome
Appeal upheld; development application approved subject to conditions.
Legal Topics
['development Application' 'deemed Refusal Appeal' 'shop Top Housing' 'demolition' 'height Development Standard Variation' 'floor Space Ratio Development Standard Variation' 'voluntary Planning Agreement' 'conciliation Conference' 'development Consent Conditions']
['planning and Environment Law'] ['development Application' 'deemed Refusal Appeal' 'shop Top Housing' 'demolition' 'height Development Standard Variation' 'floor Space Ratio Development Standard Variation' 'voluntary Planning Agreement' 'conciliation Conference' 'development Consent Conditions']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Application Da/296/2019 / Final Orders Following S 34 Conciliation Conference and Agreement Between the Parties

Legal Issues

  1. 1 ['Whether development consent should be granted for demolition of the existing single storey building and construction of a four storey shop top housing development at 97 Glenayr Avenue, Bondi Beach.' "Whether the parties' agreement under s 34 of the Land and Environment Court Act 1979 was a decision the Court could make in the proper exercise of its functions." 'Whether the written request under cl 4.6 of Waverley Local Environmental Plan 2012 justified contravention of the 9m height development standard by a proposed maximum height of 11.25m.' 'Whether the written request under cl 4.6 of Waverley Local Environmental Plan 2012 justified contravention of the maximum floor space ratio standard of 1:1 by a proposed FSR of 1.33:1.' 'Whether applicable planning controls and environmental considerations, including SEPP 55, BASIX, SEPP 65, Waverley Local Environmental Plan 2012, heritage, notification, and the proposed VPA, permitted approval subject to conditions.']

Ratio Decidendi

Because the parties reached a s 34 agreement and the Commissioner was satisfied that the agreed decision was one the Court could make in the proper exercise of its functions, including satisfaction of the applicable statutory and planning requirements and the cl 4.6 requirements for the height and FSR contraventions, the Court was required to dispose of the proceedings in accordance with the parties' decision and approve the development application subject to conditions.

Court Disposition

Appeal upheld; development application approved subject to conditions.

Orders

  • ['The Applicant is granted leave to rely on the amended architectural plan prepared by Bureau SRH Architecture Basement & Ground Floor Plan, Drawing No. S34 101 (Rev 7), dated 22 February 2021.' 'The Applicant is granted leave to rely on the amended written request under clause 4.6 of the Waverley Local...