Xu and Cui v The City of Canada Bay Council [2022] NSWLEC 1549

Xu and Cui v The City of Canada Bay Council [2022] NSWLEC 1549

The Court was satisfied that the parties' agreed decision was one the Court could make in the proper exercise of its functions because the amended development application had owner consent, notification and submissions had been addressed, the development was permissible in the R2 Low Density Residential zone, the cl 4.6 written requests adequately justified the height and floor space ratio variations, and the relevant environmental planning instruments and site constraints had been appropriately considered. It was therefore appropriate to make the agreed orders upholding the appeal and granting development consent subject to conditions.

Jurisdiction
Australia
Judgment Date
07 October 2022
Procedural Posture
Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of Development Application Da2021/0290 / Orders Made Following a Conciliation Conference Under S 34 AA of the Land and Environment Court Act 1979 and Agreement Between the Parties
Outcome
Appeal upheld; leave granted to amend the development application; cl 4.6 requests upheld; development consent granted subject to conditions.
Legal Topics
['development Application for Alterations and Additions to a Dwelling House' 'clause 4.6 Written Requests' 'height of Building Development Standard' 'floor Space Ratio Development Standard' 'foreshore Land' 'coastal Hazards' 'basix' 'acid Sulfate Soils' 'environmentally Sensitive Land']
['planning and Environment Law' 'development Consent' 'land and Environment Court Proceedings'] ['development Application for Alterations and Additions to a Dwelling House' 'clause 4.6 Written Requests' 'height of Building Development Standard' 'floor Space Ratio Development Standard' 'foreshore Land' 'coastal Hazards' 'basix' 'acid Sulfate Soils' 'environmentally Sensitive Land']

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Procedural Posture

Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of Development Application Da2021/0290 / Orders Made Following a Conciliation Conference Under S 34 AA of the Land and Environment Court Act 1979 and Agreement Between the Parties

Legal Issues

  1. 1 ["Whether the Court could dispose of the proceedings in accordance with the parties' agreed decision under s 34(3) of the Land and Environment Court Act 1979." 'Whether the jurisdictional prerequisites for granting consent to the amended development application were satisfied.' "Whether the Applicant's cl 4.6 written requests adequately justified contraventions of the height of building and floor space ratio development standards in the Canada Bay Local Environmental Plan 2013." 'Whether relevant environmental planning instruments and matters, including foreshore, coastal, acid sulfate soils, environmentally sensitive land, contamination and BASIX requirements, had been appropriately addressed.']

Ratio Decidendi

The Court was satisfied that the parties' agreed decision was one the Court could make in the proper exercise of its functions because the amended development application had owner consent, notification and submissions had been addressed, the development was permissible in the R2 Low Density Residential zone, the cl 4.6 written requests adequately justified the height and floor space ratio variations, and the relevant environmental planning instruments and site constraints had been appropriately considered. It was therefore appropriate to make the agreed orders upholding the appeal and granting development consent subject to conditions.

Court Disposition

Appeal upheld; leave granted to amend the development application; cl 4.6 requests upheld; development consent granted subject to conditions.

Orders

  • ['Leave is granted to the Applicant to amend Development Application DA2021/0290 and rely on the amended plans and documents listed at Annexure A.' "The Applicant's written request, pursuant to clause 4.6 of the Canada Bay Local Environmental Plan 2013 (CBLEP), seeking to vary the development standard for height of...