Sivabalakan v Cumberland Council [2021] NSWLEC 1608

Sivabalakan v Cumberland Council [2021] NSWLEC 1608

The Court was satisfied that the relevant jurisdictional preconditions identified by the parties had been achieved, including under the Holroyd Local Environmental Plan 2013, the State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, and State Environmental Planning Policy No 55 – Remediation of Land. Because the parties' decision was one the Court could have made in the proper exercise of its functions, s 34(3) of the Land and Environment Court Act 1979 required the Court to dispose of the proceedings in accordance with that decision by upholding the appeal and granting conditional development consent.

Jurisdiction
Australia
Judgment Date
15 October 2021
Procedural Posture
Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of a Development Application / Orders Following S 34 Conciliation Conference and Agreement Between the Parties
Outcome
Appeal upheld; Development Application DA 2021/0055 approved subject to conditions; Applicant ordered to pay Respondent's agreed costs of $3,500 within 28 days.
Legal Topics
['development Application' 'centre Based Child Care Facility' 'conciliation Conference' 'conditional Development Consent' 'jurisdictional Prerequisites' 'costs']
['planning and Environment Law'] ['development Application' 'centre Based Child Care Facility' 'conciliation Conference' 'conditional Development Consent' 'jurisdictional Prerequisites' 'costs']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ["Whether the parties' decision in the s 34 agreement was a decision that the Court could have made in the proper exercise of its functions" 'Whether the relevant jurisdictional prerequisites under the Holroyd Local Environmental Plan 2013, State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, and State Environmental Planning Policy No 55 – Remediation of Land were satisfied' 'Whether Development Application DA 2021/0055 should be approved subject to agreed conditions']

Ratio Decidendi

The Court was satisfied that the relevant jurisdictional preconditions identified by the parties had been achieved, including under the Holroyd Local Environmental Plan 2013, the State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, and State Environmental Planning Policy No 55 – Remediation of Land. Because the parties' decision was one the Court could have made in the proper exercise of its functions, s 34(3) of the Land and Environment Court Act 1979 required the Court to dispose of the proceedings in accordance with that decision by upholding the appeal and granting conditional development consent.

Court Disposition

Appeal upheld; Development Application DA 2021/0055 approved subject to conditions; Applicant ordered to pay Respondent's agreed costs of $3,500 within 28 days.

Orders

  • ['Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent consent authority, agreed in the sum of $3,500 to be paid within 28 days of orders being made.' 'The appeal is upheld.' "Development Application DA 2021/0055 for demolition of existing...