Levitt v Waverley Council [2024] NSWLEC 1316

Levitt v Waverley Council [2024] NSWLEC 1316

The Court upheld the appeal and granted consent because the parties had reached a s 34 agreement, the jurisdictional prerequisites for the exercise of power under s 4.16 of the Environmental Planning and Assessment Act 1979 were satisfied, the cl 4.6 requests for the height of building and floor space ratio variations were well founded, approval of the amended development was in the public interest, and the agreed decision was one the Court could have made in the proper exercise of its functions.

Jurisdiction
Australia
Judgment Date
12 June 2024
Procedural Posture
Class 1 Development Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application DA 301/2022 / Orders Made Following Conciliation Conference and Agreement Under S 34 of the Land and Environment Court Act 1979
Outcome
Appeal upheld; cl 4.6 variation requests upheld; development consent granted subject to conditions.
Legal Topics
['development Consent' 'development Appeal' 'conciliation Conference' 'clause 4.6 Variation' 'height of Building Development Standard' 'floor Space Ratio Development Standard' 'dual Occupancy' 'strata Subdivision']
['environmental Planning and Development' 'land and Environment Court Procedure'] ['development Consent' 'development Appeal' 'conciliation Conference' 'clause 4.6 Variation' 'height of Building Development Standard' 'floor Space Ratio Development Standard' 'dual Occupancy' 'strata Subdivision']

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Procedural Posture

Class 1 Development Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application DA 301/2022 / Orders Made Following Conciliation Conference and Agreement Under S 34 of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the parties' agreed decision was a decision 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 the jurisdictional prerequisites for granting development consent under s 4.16 of the Environmental Planning and Assessment Act 1979 were satisfied.' 'Whether the cl 4.6 written request to vary the height of building development standard in cl 4.3 of the Waverley Local Environmental Plan 2012 was well founded.' 'Whether the cl 4.6 written request to vary the floor space ratio development standard in cl 4.4 of the Waverley Local Environmental Plan 2012 was well founded.' 'Whether approval of the amended development application was in the public interest.']

Ratio Decidendi

The Court upheld the appeal and granted consent because the parties had reached a s 34 agreement, the jurisdictional prerequisites for the exercise of power under s 4.16 of the Environmental Planning and Assessment Act 1979 were satisfied, the cl 4.6 requests for the height of building and floor space ratio variations were well founded, approval of the amended development was in the public interest, and the agreed decision was one the Court could have made in the proper exercise of its functions.

Court Disposition

Appeal upheld; cl 4.6 variation requests upheld; development consent granted subject to conditions.

Orders

  • ['The appeal is upheld.' 'The request pursuant to cl 4.6 of the Waverley Local Environmental Plan 2012 to vary the development standard for height of building control contained within cl 4.3 thereof, as prepared by Navon Planning dated April 2024, is upheld.' 'The request pursuant to cl 4.6 of the Waverley Local...