Touma Carlton Pty Ltd v Georges River Council [2020] NSWLEC 1408

Touma Carlton Pty Ltd v Georges River Council [2020] NSWLEC 1408

Because the Commissioner was satisfied that the relevant jurisdictional prerequisites had been met and that the parties' agreed decision was one the Court could have made in the proper exercise of its functions, s 34(3) of the Land and Environment Court Act 1979 required the Court to dispose of the proceedings in accordance with that agreement by upholding the appeal and approving DA 2019/0116 subject to conditions.

Jurisdiction
Australia
Judgment Date
04 September 2020
Procedural Posture
Class 1 Development Application Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 / Determined After S 34 Conciliation Conference by Orders Giving Effect to the Parties' Agreement
Outcome
Appeal upheld; development application approved subject to conditions.
Legal Topics
['development Application Appeal' 'conciliation Conference' 'agreement Between the Parties' 'clause 4.6 Variation' 'building Height Development Standard' 'mixed Use Development' 'residential Apartment Development' 'basix' 'remediation of Land' 'flood Planning']
['planning and Environment' 'development Consent'] ['development Application Appeal' 'conciliation Conference' 'agreement Between the Parties' 'clause 4.6 Variation' 'building Height Development Standard' 'mixed Use Development' 'residential Apartment Development' 'basix' 'remediation of Land' 'flood Planning']

Case Brief

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Procedural Posture

Class 1 Development Application Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 / Determined After S 34 Conciliation Conference by Orders Giving Effect to the Parties' Agreement

Legal Issues

  1. 1 ['Whether the jurisdictional prerequisites for approval of the amended development application were satisfied.' "Whether the applicant's written request under cl 4.6(3) of the Kogarah Local Environmental Plan 2012 adequately addressed the 1.7m non-compliance with the height of buildings development standard in cl 4.3." "Whether the parties' agreed decision was a decision that 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 Application DA 2019/0116 should be approved subject to conditions.']

Ratio Decidendi

Because the Commissioner was satisfied that the relevant jurisdictional prerequisites had been met and that the parties' agreed decision was one the Court could have made in the proper exercise of its functions, s 34(3) of the Land and Environment Court Act 1979 required the Court to dispose of the proceedings in accordance with that agreement by upholding the appeal and approving DA 2019/0116 subject to conditions.

Court Disposition

Appeal upheld; development application approved subject to conditions.

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 objection on the 1.7m variation of the height limit under clause 4.3 of the Kogarah Local Environmental Plan 2012 is upheld.' 'The appeal is upheld.'...