Byrne v Northern Beaches Council [2022] NSWLEC 1207

Byrne v Northern Beaches Council [2022] NSWLEC 1207

The Court upheld the appeal and granted consent because the parties reached a s 34 agreement and the Commissioner was satisfied the agreed decision was one the Court could make in the proper exercise of its functions: owner consent was given, notification occurred without submissions, relevant State and local planning controls were addressed, required referrals and reports supported the proposal, the B2 Local Centre zoning permitted shop top housing with consent, and the cl 4.6 requests adequately justified the proposed variations to the height and commercial floor area standards.

Jurisdiction
Australia
Judgment Date
21 April 2022
Procedural Posture
Class 1 Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Actual Refusal of Development Application No Da/2020/1733 / Orders Made Following Agreement Reached at a Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979
Outcome
Appeal upheld; Development Application No. 2020/1733 granted consent subject to conditions; Applicant ordered to pay Respondent's thrown away costs of $5,000 within 28 days.
Legal Topics
['development Application for Shop Top Housing' 'conciliation Agreement' 'amended Plans' 'clause 4.6 Variation Request' 'building Height Development Standard' 'commercial Premises Gross Floor Area Requirement' 'residential Apartment Design Quality' 'road Noise and Classified Road Impacts' 'contamination and Remediation' 'stormwater Management']
['environmental Planning and Assessment' 'land and Environment Court Procedure'] ['development Application for Shop Top Housing' 'conciliation Agreement' 'amended Plans' 'clause 4.6 Variation Request' 'building Height Development Standard' 'commercial Premises Gross Floor Area Requirement' 'residential Apartment Design Quality' 'road Noise and Classified Road Impacts' 'contamination and Remediation' 'stormwater Management']

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Procedural Posture

Class 1 Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Actual Refusal of Development Application No Da/2020/1733 / Orders Made Following Agreement Reached at a Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the Court could make orders giving effect to the parties' s 34 conciliation agreement to uphold the appeal and grant development consent." 'Whether the amended development application satisfied relevant statutory and planning controls, including BASIX, contamination, road works, residential apartment design quality, road noise, zoning, height, floor space ratio, acid sulfate soils, stormwater, active street frontage, essential services and design excellence requirements.' 'Whether written requests under cl 4.6 of Manly Local Environmental Plan 2013 justified variation of the height of buildings standard and the commercial premises gross floor area requirement.']

Ratio Decidendi

The Court upheld the appeal and granted consent because the parties reached a s 34 agreement and the Commissioner was satisfied the agreed decision was one the Court could make in the proper exercise of its functions: owner consent was given, notification occurred without submissions, relevant State and local planning controls were addressed, required referrals and reports supported the proposal, the B2 Local Centre zoning permitted shop top housing with consent, and the cl 4.6 requests adequately justified the proposed variations to the height and commercial floor area standards.

Court Disposition

Appeal upheld; Development Application No. 2020/1733 granted consent subject to conditions; Applicant ordered to pay Respondent's thrown away costs of $5,000 within 28 days.

Orders

  • ['The appeal is upheld.' 'Development Application No. 2020/1733, for the demolition of existing structure(s) and construction of a 5 storey shop top housing development with basement carparking accessed from Condamine Street, four (4) ground level retail shops, with 12 residential apartments above, associated...