Chan v City of Canada Bay Council [2021] NSWLEC 1782

Chan v City of Canada Bay Council [2021] NSWLEC 1782

Because the amended Development Application had owner consent, the development was permissible with consent in the R3 Medium Density Residential zone, the principal development standards and relevant provisions of the CBLEP, SEPP ARH, SEPP 55 and BASIX had been adequately addressed, and the amended proposal resolved the Respondent's contentions, the parties' agreed decision was one the Court could make in the proper exercise of its functions under s 34(3) of the LEC Act. The Court therefore made the agreed orders upholding the appeal and granting consent subject to conditions.

Jurisdiction
Australia
Judgment Date
21 December 2021
Procedural Posture
Class 1 Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of Development Application Da2021/0146 / Orders Made Following Agreement Reached at a Conciliation Conference Under S 34 of the Land and Environment Court Act 1979
Outcome
Appeal upheld; development consent granted to DA2021/0146 as amended, subject to conditions in Annexure A.
Legal Topics
['development Application' 'boarding House' 'conciliation Conference' 'deemed Refusal Appeal' 'affordable Rental Housing' 'local Environmental Plan Compliance']
['planning and Environment Law' 'development Consent'] ['development Application' 'boarding House' 'conciliation Conference' 'deemed Refusal Appeal' 'affordable Rental Housing' 'local Environmental Plan Compliance']

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 the Deemed Refusal of Development Application Da2021/0146 / Orders Made Following Agreement Reached at a Conciliation Conference Under S 34 of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the Court could dispose of the proceedings in accordance with the parties' agreed decision under s 34(3) of the Land and Environment Court Act 1979." 'Whether jurisdictional prerequisites for granting consent to the amended Development Application were satisfied.' 'Whether the amended boarding house development was permissible with consent and complied with relevant planning controls.' "Whether the amended Development Application resolved the Respondent's contentions concerning context, visual and acoustic privacy, landscaping, residential amenity, driveway access, traffic and parking."]

Ratio Decidendi

Because the amended Development Application had owner consent, the development was permissible with consent in the R3 Medium Density Residential zone, the principal development standards and relevant provisions of the CBLEP, SEPP ARH, SEPP 55 and BASIX had been adequately addressed, and the amended proposal resolved the Respondent's contentions, the parties' agreed decision was one the Court could make in the proper exercise of its functions under s 34(3) of the LEC Act. The Court therefore made the agreed orders upholding the appeal and granting consent subject to conditions.

Court Disposition

Appeal upheld; development consent granted to DA2021/0146 as amended, subject to conditions in Annexure A.

Orders

  • ['Leave is granted to the Applicant to amend DA2021/0146 and to rely upon the amended documents and plans set out in Condition 1 of Annexure A.' "Pursuant to Section 8.15(3) of the EPA Act, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Development Application in such amount...