Saade v Strathfield Municipal Council [2021] NSWLEC 1206

Saade v Strathfield Municipal Council [2021] NSWLEC 1206

Because the parties' agreement was a decision the Court could have made in the proper exercise of its functions, and the relevant jurisdictional prerequisites were satisfied, including permissibility in the R3 Zone, satisfaction of the cl 4.6 height variation requirements, compliance with relevant affordable rental housing standards, local character compatibility, remediation requirements and BASIX requirements, the Court was required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with the agreement and grant development consent subject to conditions.

Jurisdiction
Australia
Judgment Date
29 April 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 No Da2020/106 / Orders Made Following a Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979 and Agreement Between the Parties
Outcome
Appeal upheld; development consent granted subject to conditions.
Legal Topics
['development Application' 'boarding House' 'height Development Standard Variation' 'clause 4.6 Variation Request' 'conciliation Conference' 'affordable Rental Housing' 'remediation of Land' 'basix Compliance']
['planning and Environment Law' 'development Consent'] ['development Application' 'boarding House' 'height Development Standard Variation' 'clause 4.6 Variation Request' 'conciliation Conference' 'affordable Rental Housing' 'remediation of Land' 'basix Compliance']

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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 No Da2020/106 / Orders Made Following a Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979 and Agreement Between the Parties

Legal Issues

  1. 1 ['Whether the Court could grant development consent to Development Application No DA2020/106 in the proper exercise of its functions under the Environmental Planning and Assessment Act 1979.' 'Whether the proposed boarding house was permissible with consent in the R3 Medium Density Residential Zone and consistent with the zone objectives.' 'Whether the written request to vary the height of buildings development standard under cl 4.6 of the Strathfield Local Environmental Plan 2012 should be upheld.' 'Whether the proposed development satisfied relevant standards under the State Environmental Planning Policy (Affordable Rental Housing) 2009, including compatibility with the character of the local area.' 'Whether contamination and remediation matters under State Environmental Planning Policy No 55—Remediation of Land were adequately addressed.' 'Whether BASIX requirements were addressed by the BASIX certificate.']

Ratio Decidendi

Because the parties' agreement was a decision the Court could have made in the proper exercise of its functions, and the relevant jurisdictional prerequisites were satisfied, including permissibility in the R3 Zone, satisfaction of the cl 4.6 height variation requirements, compliance with relevant affordable rental housing standards, local character compatibility, remediation requirements and BASIX requirements, the Court was required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with the agreement and grant development consent subject to conditions.

Court Disposition

Appeal upheld; development consent granted subject to conditions.

Orders

  • ['Leave is granted to the Applicant to rely upon the amended plans and documents identified in the judgment.' 'The appeal is upheld.' "Development Consent is granted to Development Application no. DA2020/106 for the demolition of existing dwelling and construction of a boarding house comprising fifty-one (51) rooms...