Zhou v Bayside Council [2022] NSWLEC 1638

Zhou v Bayside Council [2022] NSWLEC 1638

Because the parties' agreed resolution was within the Court's powers, the Building Information Certificate orders were authorised by s 8.25(3)(a) and (c) of the Environmental Planning and Assessment Act 1979, and the cl 4.6 written request adequately justified the floor area contravention and satisfied the public interest requirements, the Court was required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with the parties' agreement.

Jurisdiction
Australia
Judgment Date
24 November 2022
Procedural Posture
Class 1 Miscellaneous Appeal Under S 8.25 of the Environmental Planning and Assessment Act 1979 and Class 1 Development Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 / Conciliation Conference; Agreement Reached and Final Orders Made
Outcome
Both appeals upheld; Building Information Certificate orders made; cl 4.6 written request upheld; development consent granted subject to conditions.
Legal Topics
['building Information Certificate' 'development Application' 'unauthorised Secondary Dwelling' 'change of Use From Cabana to Secondary Dwelling' 'clause 4.6 Variation Request' 'floor Space Ratio Development Standard' 'conciliation Conference Agreement']
['environmental Planning and Development' 'land and Environment Court Procedure'] ['building Information Certificate' 'development Application' 'unauthorised Secondary Dwelling' 'change of Use From Cabana to Secondary Dwelling' 'clause 4.6 Variation Request' 'floor Space Ratio Development Standard' 'conciliation Conference Agreement']

Case Brief

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Procedural Posture

Class 1 Miscellaneous Appeal Under S 8.25 of the Environmental Planning and Assessment Act 1979 and Class 1 Development Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 / Conciliation Conference; Agreement Reached and Final Orders Made

Legal Issues

  1. 1 ['Whether the Court could make agreed orders in the Building Information Certificate appeal under s 8.25(3)(a) and (c) of the Environmental Planning and Assessment Act 1979.' "Whether the applicant's written request under cl 4.6 of the Bayside Local Environmental Plan 2021 adequately justified contravention of the maximum floor area development standard in s 52(2)(b) of State Environmental Planning Policy (Housing) 2021." 'Whether the proposed development was in the public interest because it was consistent with the objectives of the floor area standard and the R2 Low Density Residential Zone.' "Whether the parties' agreed decision was one the Court could have made in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979."]

Ratio Decidendi

Because the parties' agreed resolution was within the Court's powers, the Building Information Certificate orders were authorised by s 8.25(3)(a) and (c) of the Environmental Planning and Assessment Act 1979, and the cl 4.6 written request adequately justified the floor area contravention and satisfied the public interest requirements, the Court was required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with the parties' agreement.

Court Disposition

Both appeals upheld; Building Information Certificate orders made; cl 4.6 written request upheld; development consent granted subject to conditions.

Orders

  • ['In proceedings 2022/115452, the appeal is upheld.' "Pursuant to s 8.25(3)(a) and (c) of the Environmental Planning and Assessment Act 1979, within 120 days the applicant is to carry out specified demolition works, building works, works recommended by 360 Certification, provide a structural engineer's report, and...