Kiang v Randwick City Council [2022] NSWLEC 1282

Kiang v Randwick City Council [2022] NSWLEC 1282

The parties' agreed decision was one the Court could make because the amended development application had owner consent, public notification and submissions had been addressed, the residential flat building was permissible with consent in the R3 Medium Density Residential zone, the amended application satisfied relevant planning controls except for the height standard, the cl 4.6 written request adequately justified the approximately 520mm height exceedance, the development met the objectives of the zone and height standard, and the relevant provisions of the RLEP and State environmental planning policies were satisfied. It was therefore appropriate under s 34(3) of the Land and...

Jurisdiction
Australia
Judgment Date
02 June 2022
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 Da/617/2021 / Section 34 Conciliation Conference; Parties Reached Agreement and Final Orders Made
Outcome
Appeal upheld; leave granted to amend the development application; cl 4.6 written request upheld; development consent granted subject to conditions; Applicant ordered to pay agreed costs thrown away.
Legal Topics
['development Application' 'residential Flat Building' 'clause 4.6 Written Request' 'height of Buildings Development Standard' 'section 34 Conciliation Agreement' 'affordable Rental Housing' 'costs Thrown Away']
['planning and Environment Law' 'development Consent' 'local Government'] ['development Application' 'residential Flat Building' 'clause 4.6 Written Request' 'height of Buildings Development Standard' 'section 34 Conciliation Agreement' 'affordable Rental Housing' 'costs Thrown Away']

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 Da/617/2021 / Section 34 Conciliation Conference; Parties Reached Agreement and Final Orders Made

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 consent should be granted to the amended Development Application DA/617/2021 for a residential flat building at 33-35 Church Street, Randwick.' "Whether the Applicant's written request under cl 4.6 of the Randwick Local Environmental Plan 2012 adequately justified contravention of the height of buildings development standard in cl 4.3." 'Whether the amended development application satisfied the relevant jurisdictional prerequisites and environmental planning instruments.']

Ratio Decidendi

The parties' agreed decision was one the Court could make because the amended development application had owner consent, public notification and submissions had been addressed, the residential flat building was permissible with consent in the R3 Medium Density Residential zone, the amended application satisfied relevant planning controls except for the height standard, the cl 4.6 written request adequately justified the approximately 520mm height exceedance, the development met the objectives of the zone and height standard, and the relevant provisions of the RLEP and State environmental planning policies were satisfied. It was therefore appropriate under s 34(3) of the Land and...

Court Disposition

Appeal upheld; leave granted to amend the development application; cl 4.6 written request upheld; development consent granted subject to conditions; Applicant ordered to pay agreed costs thrown away.

Orders

  • ['Leave is granted to the Applicant to amend Development Application DA/617/2021 and rely on the amended plans and documents listed at condition 1 of Annexure A.' "Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result...