Shrimpton v Waverley Council [2023] NSWLEC 1709

Shrimpton v Waverley Council [2023] NSWLEC 1709

The Court found that the jurisdictional prerequisites for granting consent had been met, that the cl 4.6 written request adequately addressed why compliance with the height standard was unreasonable or unnecessary and why sufficient environmental planning grounds justified the contravention, and that the development was in the public interest because it was consistent with the objectives of cl 4.3 and the R2 Low Density Residential zone. Because the parties' agreement was a decision 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 agreement.

Jurisdiction
Australia
Judgment Date
24 November 2023
Procedural Posture
Class 1 Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. 230/2022 / Orders Following S 34 AA Conciliation Conference and Agreement Between the Parties
Outcome
Appeal upheld; cl 4.6 written request upheld; development consent granted subject to conditions contained in Annexure A.
Legal Topics
['development Application Appeal' 'conciliation Conference Agreement' 'clause 4.6 Variation Request' 'height of Buildings Development Standard' 'jurisdictional Prerequisites for Consent' 'coastal Use Area Considerations' 'remediation of Land' 'residential Alterations and Additions']
['planning and Environment Law' 'development Consent' 'land and Environment Court Class 1 Jurisdiction'] ['development Application Appeal' 'conciliation Conference Agreement' 'clause 4.6 Variation Request' 'height of Buildings Development Standard' 'jurisdictional Prerequisites for Consent' 'coastal Use Area Considerations' 'remediation of Land' 'residential Alterations and Additions']

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Procedural Posture

Class 1 Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. 230/2022 / Orders Following S 34 AA Conciliation Conference and Agreement Between the Parties

Legal Issues

  1. 1 ["Whether the Court could dispose of the proceedings in accordance with the parties' agreement under s 34(3) of the Land and Environment Court Act 1979." 'Whether jurisdictional prerequisites for granting development consent were satisfied.' 'Whether the written request under cl 4.6 of the Waverley Local Environmental Plan 2012 adequately justified contravention of the height of buildings development standard in cl 4.3.' 'Whether the proposed development was in the public interest because it was consistent with the objectives of the contravened development standard and the R2 Low Density Residential zone.']

Ratio Decidendi

The Court found that the jurisdictional prerequisites for granting consent had been met, that the cl 4.6 written request adequately addressed why compliance with the height standard was unreasonable or unnecessary and why sufficient environmental planning grounds justified the contravention, and that the development was in the public interest because it was consistent with the objectives of cl 4.3 and the R2 Low Density Residential zone. Because the parties' agreement was a decision 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 agreement.

Court Disposition

Appeal upheld; cl 4.6 written request upheld; development consent granted subject to conditions contained in Annexure A.

Orders

  • ['The written request pursuant to clause 4.6 of the Waverley Local Environmental Plan 2012 dated 13 November 2023 prepared by A Square Planning is upheld.' 'The appeal is upheld.' 'Development Application DA-230/2022 (DA) for alterations and additions to the dwelling including the construction of a double garage,...