UrbanLuxe Boronia Pty Ltd v Sutherland Shire Council [2019] NSWLEC 1371

UrbanLuxe Boronia Pty Ltd v Sutherland Shire Council [2019] NSWLEC 1371

The Commissioner was satisfied that the amended proposal satisfied the relevant planning controls and jurisdictional prerequisites, that the height variation request under cl 4.6 of the Sutherland Shire Local Environmental Plan 2015 justified the limited height exceedance, and that there were no jurisdictional impediments to the parties' agreement. Because the agreed decision was one the Court could have made in the proper exercise of its functions, the Court disposed of the proceedings in accordance with that agreement by upholding the appeal and granting consent subject to conditions.

Jurisdiction
Australia
Judgment Date
06 August 2019
Procedural Posture
Class 1 Appeal Against a Deemed Refusal of Development Application Da18/1175 / Orders Following Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979
Outcome
Appeal upheld; Development Application DA18/1175 approved subject to conditions.
Legal Topics
['development Application' 'conciliation Conference' 'agreement Between the Parties' 'clause 4.6 Variation' 'maximum Height Development Standard' 'residential Flat Building']
['planning and Environment' 'development Consent'] ['development Application' 'conciliation Conference' 'agreement Between the Parties' 'clause 4.6 Variation' 'maximum Height Development Standard' 'residential Flat Building']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 1 Appeal Against a Deemed Refusal of Development Application Da18/1175 / Orders Following Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether the Court should grant leave for the Applicant to rely on amended plans and an amended cl 4.6 request for variation of the height standard.' 'Whether the proposed development satisfied the relevant jurisdictional prerequisites under s 4.15(1) of the Environmental Planning and Assessment Act 1979.' 'Whether the written request under cl 4.6 of the Sutherland Shire Local Environmental Plan 2015 justified contravention of the maximum height development standard in cl 4.3.' "Whether the parties' agreed decision to uphold the appeal and grant development consent with conditions was a decision the Court could have made in the proper exercise of its functions."]

Ratio Decidendi

The Commissioner was satisfied that the amended proposal satisfied the relevant planning controls and jurisdictional prerequisites, that the height variation request under cl 4.6 of the Sutherland Shire Local Environmental Plan 2015 justified the limited height exceedance, and that there were no jurisdictional impediments to the parties' agreement. Because the agreed decision was one the Court could have made in the proper exercise of its functions, the Court disposed of the proceedings in accordance with that agreement by upholding the appeal and granting consent subject to conditions.

Court Disposition

Appeal upheld; Development Application DA18/1175 approved subject to conditions.

Orders

  • ["Leave is granted to the Applicant to rely upon the amended plans listed in Condition 1 at Annexure 'A', and an amended cl 4.6 request for standard (height) variation, filed on 12 July 2019." 'Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the...