T & R Property Development (Gordon) Pty Ltd v Bayside Council [2021] NSWLEC 1299

T & R Property Development (Gordon) Pty Ltd v Bayside Council [2021] NSWLEC 1299

The Court was satisfied that all relevant jurisdictional matters had been addressed, that the proposal was permissible in the B2 Local Centre Zone, that the cl 4.6 written request adequately justified contravention of the active street frontages standard in cl 6.15 of the Botany Bay Local Environmental Plan 2013, and that the 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, the Court was therefore required to dispose of the proceedings in accordance with the parties' agreement by upholding the appeal and granting development consent subject to conditions.

Jurisdiction
Australia
Judgment Date
31 May 2021
Procedural Posture
Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Bayside Council's Deemed Refusal of Development Application No. 2020/201 / Decision Following S 34 Conciliation Conference and Agreement Between the Parties
Outcome
Appeal upheld; development application approved subject to conditions; cl 4.6 variation request upheld; applicant ordered to pay respondent's agreed costs.
Legal Topics
['development Application' 'deemed Refusal Appeal' 'conciliation Conference' 'boarding House Development' 'clause 4.6 Variation Request' 'active Street Frontages' 'development Consent Subject to Conditions']
['planning and Environment Law'] ['development Application' 'deemed Refusal Appeal' 'conciliation Conference' 'boarding House Development' 'clause 4.6 Variation Request' 'active Street Frontages' 'development Consent Subject to Conditions']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Bayside Council's Deemed Refusal of Development Application No. 2020/201 / Decision Following S 34 Conciliation Conference and Agreement Between the Parties

Legal Issues

  1. 1 ["Whether the parties' agreed decision was a decision 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 development consent could be granted for demolition of existing structures and construction of a 4 storey boarding house development with basement parking' 'Whether the cl 4.6 written request justified contravention of the active street frontages standard in cl 6.15 of the Botany Bay Local Environmental Plan 2013' 'Whether relevant jurisdictional matters, environmental planning instruments and submissions had been considered']

Ratio Decidendi

The Court was satisfied that all relevant jurisdictional matters had been addressed, that the proposal was permissible in the B2 Local Centre Zone, that the cl 4.6 written request adequately justified contravention of the active street frontages standard in cl 6.15 of the Botany Bay Local Environmental Plan 2013, and that the 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, the Court was therefore required to dispose of the proceedings in accordance with the parties' agreement by upholding the appeal and granting development consent subject to conditions.

Court Disposition

Appeal upheld; development application approved subject to conditions; cl 4.6 variation request upheld; applicant ordered to pay respondent's agreed costs.

Orders

  • ["The applicant is granted leave to amend the development application and rely on the amended plans referred to in Condition 1 of Annexure 'A'." 'The clause 4.6 variation request in relation to active street frontages to cl 6.15 of the Botany Bay Local Environmental Plan 2013 is upheld.' 'The Appeal is upheld.'...