Roseg Pty Ltd v Northern Beaches Council [2023] NSWLEC 1301

Roseg Pty Ltd v Northern Beaches Council [2023] NSWLEC 1301

The Court was satisfied that the amended development application addressed the relevant jurisdictional requirements, including flooding, BASIX, landowner consent, WLEP, WDCP and applicable SEPP requirements; that the cl 4.6 written request provided sufficient environmental planning grounds to vary the cl 40(4)(c) height standard and strict compliance was unreasonable and unnecessary; and that the parties' agreed decision was one the Court could make in the proper exercise of its functions. The appeal was therefore upheld and consent granted subject to conditions.

Jurisdiction
Australia
Judgment Date
16 June 2023
Procedural Posture
Class 1 Appeal Against Refusal of Development Application Da2020/0563 / Section 34 Conciliation Conference; Parties Reached Agreement and the Court Made Orders Granting Consent
Outcome
Appeal upheld; cl 4.6 written request upheld; Development Application DA2020/0563 granted consent subject to conditions in Annexure A.
Legal Topics
['seniors Housing Development' 'clause 4.6 Variation Request' 'height Development Standard' 'flood Management' 'jurisdictional Prerequisites for Development Consent']
['planning and Environmental Law' 'development Consent' 'land and Environment Court Conciliation'] ['seniors Housing Development' 'clause 4.6 Variation Request' 'height Development Standard' 'flood Management' 'jurisdictional Prerequisites for Development Consent']

Case Brief

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Procedural Posture

Class 1 Appeal Against Refusal of Development Application Da2020/0563 / Section 34 Conciliation Conference; Parties Reached Agreement and the Court Made Orders Granting Consent

Legal Issues

  1. 1 ["Whether the Court could dispose of the proceedings under s 34(3) of the Land and Environment Court Act 1979 in accordance with the parties' agreed decision." 'Whether Development Application DA2020/0563, as amended, satisfied the relevant jurisdictional requirements for grant of consent under ss 4.15 and 4.16 of the Environmental Planning and Assessment Act 1979.' 'Whether the written request under cl 4.6 of the Warringah Local Environmental Plan 2011 justified variation of the height standard in cl 40(4)(c) of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004.' 'Whether flooding and stormwater overland flow issues were sufficiently addressed by the amended application and conditions.']

Ratio Decidendi

The Court was satisfied that the amended development application addressed the relevant jurisdictional requirements, including flooding, BASIX, landowner consent, WLEP, WDCP and applicable SEPP requirements; that the cl 4.6 written request provided sufficient environmental planning grounds to vary the cl 40(4)(c) height standard and strict compliance was unreasonable and unnecessary; and that the parties' agreed decision was one the Court could make in the proper exercise of its functions. The appeal was therefore upheld and consent granted subject to conditions.

Court Disposition

Appeal upheld; cl 4.6 written request upheld; Development Application DA2020/0563 granted consent subject to conditions in Annexure A.

Orders

  • ['The appeal is upheld.' 'The written request prepared by Ludvik & Associates Pty Ltd, dated 16 May 2022, prepared pursuant to clause 4.6 of the Warringah Local Environmental Plan 2011 and seeking a variation to the height of buildings located in the rear 25% area of the site not exceeding one storey standard,...