Maher v Sutherland Shire Council [2018] NSWLEC 1608

Maher v Sutherland Shire Council [2018] NSWLEC 1608

Because the applicants' clause 4.6 requests adequately addressed the required matters for the height and landscaped area contraventions, the proposal was not antipathetic to the relevant development standard and zone objectives and was in the public interest, there was no relevant contamination remediation requirement, and no jurisdictional impediment existed, the parties' agreed decision to approve the development application subject to conditions was one the Court could make and had to be endorsed under s 34(3) of the Land and Environment Court Act 1979.

Jurisdiction
Australia
Judgment Date
04 December 2018
Procedural Posture
Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of Development Application Da17/1291 / Orders Following S 34 Conciliation Conference and Agreement Between the Parties
Outcome
Appeal upheld; development consent granted subject to conditions.
Legal Topics
['development Application Appeal' 'conciliation Conference' 'clause 4.6 Variation Requests' 'height of Buildings Development Standard' 'landscaped Area Development Standard' 'contaminated Land Consideration']
['planning and Environment Law' 'development Consent'] ['development Application Appeal' 'conciliation Conference' 'clause 4.6 Variation Requests' 'height of Buildings Development Standard' 'landscaped Area Development Standard' 'contaminated Land Consideration']

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Procedural Posture

Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of Development Application Da17/1291 / Orders Following S 34 Conciliation Conference and Agreement Between the Parties

Legal Issues

  1. 1 ["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." "Whether the applicants' written clause 4.6 requests adequately addressed the required matters for contraventions of the height of buildings and landscaped area development standards in Sutherland Shire Local Environmental Plan 2015." 'Whether the proposed development was in the public interest because it was consistent with the objectives of the contravened development standards and the Zone R3 Medium Density Residential objectives.' 'Whether State Environmental Planning Policy No 55—Remediation of Land required remediation of the site.']

Ratio Decidendi

Because the applicants' clause 4.6 requests adequately addressed the required matters for the height and landscaped area contraventions, the proposal was not antipathetic to the relevant development standard and zone objectives and was in the public interest, there was no relevant contamination remediation requirement, and no jurisdictional impediment existed, the parties' agreed decision to approve the development application subject to conditions was one the Court could make and had to be endorsed under s 34(3) of the Land and Environment Court Act 1979.

Court Disposition

Appeal upheld; development consent granted subject to conditions.

Orders

  • ['The Applicant is granted leave to rely on the amended drawings revision F dated 19 November 2018 annexed hereto and marked "A".' 'The clause 4.6 request to vary the landscaped area development standard in clause 6.14 of SSLEP prepared by GLN dated 23 September 2018, a copy of which is annexed and marked "B", is...