Jeihooni v Woollahra Municipal Council [2019] NSWLEC 1539

Jeihooni v Woollahra Municipal Council [2019] NSWLEC 1539

The parties reached an agreement under s 34(3) of the Land and Environment Court Act 1979 for approval of the amended development application subject to conditions. The Commissioner was satisfied the agreed decision was one the Court could make in the proper exercise of its functions, including because relevant statutory considerations and preconditions were addressed, the clause 4.6 request justified contravention of the height standard, and no jurisdictional impediment was identified. The Court was therefore required to dispose of the proceedings in accordance with the parties' agreement.

Jurisdiction
Australia
Judgment Date
06 November 2019
Procedural Posture
Class 1 Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application Da/510/2018 / Orders Following Court Arranged Conciliation Conference and Agreement Under S 34(3) of the Land and Environment Court Act 1979
Outcome
Appeal upheld and development application approved subject to conditions.
Legal Topics
['development Application' 'residential Dwelling' 'conciliation Conference' 'clause 4.6 Written Request' 'height Development Standard' 'conditions of Consent']
['planning and Environment Law' 'development Consent'] ['development Application' 'residential Dwelling' 'conciliation Conference' 'clause 4.6 Written Request' 'height Development Standard' 'conditions of Consent']

Case Brief

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Procedural Posture

Class 1 Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application Da/510/2018 / Orders Following Court Arranged Conciliation Conference and Agreement Under S 34(3) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the Court could make orders giving effect to the parties' agreement under s 34(3) of the Land and Environment Court Act 1979." 'Whether development consent could be granted for works including publicly accessible stairs and lookout to accommodate the proposed garage entry.' "Whether the applicant's clause 4.6 written request justified contravention of the maximum height development standard in clause 4.3 of the Woollahra Local Environmental Plan 2014." 'Whether relevant planning instruments and preconditions, including State Environmental Planning Policy No 55 – Remediation of Land, State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, State Regional Environmental Plan (Sydney Harbour Catchment) 2005 and Woollahra Local Environmental Plan 2014, permitted approval subject to conditions.']

Ratio Decidendi

The parties reached an agreement under s 34(3) of the Land and Environment Court Act 1979 for approval of the amended development application subject to conditions. The Commissioner was satisfied the agreed decision was one the Court could make in the proper exercise of its functions, including because relevant statutory considerations and preconditions were addressed, the clause 4.6 request justified contravention of the height standard, and no jurisdictional impediment was identified. The Court was therefore required to dispose of the proceedings in accordance with the parties' agreement.

Court Disposition

Appeal upheld and development application approved subject to conditions.

Orders

  • ['The applicant is granted leave to rely on the amended architectural plans and material as referred to in condition A.3 of the conditions of consent contained at Annexure "A" and the amended clause 4.6 written request at Annexure "B".' 'The Applicant\'s written request under clause 4.6 of the Woollahra Local...