Elford v Cumberland Council [2020] NSWLEC 1400

Elford v Cumberland Council [2020] NSWLEC 1400

Because the proposed boarding house development and demolition were permissible with consent in the B4 Mixed Use zone, essential services were available or capable of being made available, the relevant Affordable Housing SEPP, remediation, infrastructure notice and BASIX requirements were satisfied, and the parties' s 34 agreement was a decision the Court could have made in the proper exercise of its functions, the Court was required to dispose of the proceedings in accordance with the agreement and approve the development application subject to conditions.

Jurisdiction
Australia
Judgment Date
31 August 2020
Procedural Posture
Class 1 Appeal Against Deemed Refusal of Development Application DA 338/2019 / Final Orders Following Conciliation Conference and S 34 Agreement
Outcome
Appeal upheld; development application approved subject to conditions; Applicant granted leave to amend the development application; Applicant ordered to pay agreed costs thrown away.
Legal Topics
['development Application' 'boarding House Development' 'deemed Refusal Appeal' 'conciliation Conference' 'conditional Development Consent' 'costs Thrown Away']
['planning and Environment Law'] ['development Application' 'boarding House Development' 'deemed Refusal Appeal' 'conciliation Conference' 'conditional Development Consent' 'costs Thrown Away']

Case Brief

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Procedural Posture

Class 1 Appeal Against Deemed Refusal of Development Application DA 338/2019 / Final Orders Following Conciliation Conference and S 34 Agreement

Legal Issues

  1. 1 ["Whether the parties' agreement under s 34 of the Land and Environment Court Act 1979 was a decision that the Court could have made in the proper exercise of its functions." 'Whether development consent should be granted for demolition of existing structures and construction of a boarding house development over basement car parking at 30 Queen Street, Auburn.' 'Whether the relevant environmental planning instruments and pre-jurisdictional requirements were satisfied.']

Ratio Decidendi

Because the proposed boarding house development and demolition were permissible with consent in the B4 Mixed Use zone, essential services were available or capable of being made available, the relevant Affordable Housing SEPP, remediation, infrastructure notice and BASIX requirements were satisfied, and the parties' s 34 agreement was a decision the Court could have made in the proper exercise of its functions, the Court was required to dispose of the proceedings in accordance with the agreement and approve the development application subject to conditions.

Court Disposition

Appeal upheld; development application approved subject to conditions; Applicant granted leave to amend the development application; Applicant ordered to pay agreed costs thrown away.

Orders

  • ['The Applicant is granted leave to amend the development application and rely upon the following plans in the proceedings referred to at condition 2 in Annexure A.' "Pursuant to s8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the Respondent's s8.15(3) costs thrown away in the...