James v Inner West Council [2023] NSWLEC 1314

James v Inner West Council [2023] NSWLEC 1314

Because the parties reached a s 34(3) agreement, the jurisdictional prerequisites for the grant of consent were satisfied, the cl 4.6 written request adequately justified the floor space ratio contravention and demonstrated public interest, relevant planning and heritage matters had been considered, and any traffic control device authorisation could be addressed by an operational condition, the agreed decision was one the Court could have made in the proper exercise of its functions and the Court was required to dispose of the proceedings in accordance with it.

Jurisdiction
Australia
Judgment Date
21 June 2023
Procedural Posture
Class 1 Development Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. Da2022/0192 / Final Orders Following S 34 AA Conciliation Conference and S 34(3) Agreement
Outcome
The written requests under clause 4.6 were upheld, the appeal was upheld, and Development Application No. DA2022/0192 as amended was determined by grant of consent subject to conditions.
Legal Topics
['alterations and Additions to Convert an Existing Dwelling Into a Dual Occupancy' 'clause 4.6 Variation to Floor Space Ratio Development Standard' 'heritage Item and Heritage Conservation Area Considerations' 'operational Condition for Traffic Control Device Authorisation' 'conciliation Conference Agreement']
['planning and Environment' 'development Consent' 'heritage' 'traffic and Parking'] ['alterations and Additions to Convert an Existing Dwelling Into a Dual Occupancy' 'clause 4.6 Variation to Floor Space Ratio Development Standard' 'heritage Item and Heritage Conservation Area Considerations' 'operational Condition for Traffic Control Device Authorisation' 'conciliation Conference Agreement']

Case Brief

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Procedural Posture

Class 1 Development Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. Da2022/0192 / Final Orders Following S 34 AA Conciliation Conference and S 34(3) Agreement

Legal Issues

  1. 1 ['Whether the written request under cl 4.6 of the Leichhardt Local Environmental Plan 2013 justified contravention of the floor space ratio development standard in cl 4.4.' 'Whether jurisdictional prerequisites to granting development consent under s 4.16 of the Environmental Planning and Assessment Act 1979 were satisfied.' 'Whether the proposed development had been assessed against relevant matters including notification, contamination, BASIX, zoning, landscaped area, acid sulfate soils, earthworks, stormwater and heritage.' 'Whether requirements for installation of a No Parking sign under s 122 of the Road Transport Act 2013 could be dealt with by an operational condition of consent.' "Whether the parties' agreed decision was one the Court could have made in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979."]

Ratio Decidendi

Because the parties reached a s 34(3) agreement, the jurisdictional prerequisites for the grant of consent were satisfied, the cl 4.6 written request adequately justified the floor space ratio contravention and demonstrated public interest, relevant planning and heritage matters had been considered, and any traffic control device authorisation could be addressed by an operational condition, the agreed decision was one the Court could have made in the proper exercise of its functions and the Court was required to dispose of the proceedings in accordance with it.

Court Disposition

The written requests under clause 4.6 were upheld, the appeal was upheld, and Development Application No. DA2022/0192 as amended was determined by grant of consent subject to conditions.

Orders

  • ['The written requests under clause 4.6 of the Leichhardt Local Environmental Plan 2013 are upheld.' 'The appeal is upheld.' 'Development Application No. DA2022/0192, as amended, at 14C Jane Street, Balmain (Lot 13 DP 1041574) is determined by grant of consent, subject to the conditions of consent contained at...