WFM St Ives Pty Ltd v Ku-ring-gai Council [2020] NSWLEC 1333

WFM St Ives Pty Ltd v Ku-ring-gai Council [2020] NSWLEC 1333

Because the parties' agreed decision was one the Court could have made, and because the Court was satisfied that the applicant's cl 4.6 written request adequately addressed the required matters, that the height contravention was justified by environmental planning grounds, and that the proposal was in the public interest through consistency with the relevant development standard and zone objectives, the Court could grant development consent and dispose of the proceedings in accordance with the parties' agreement.

Jurisdiction
Australia
Judgment Date
30 July 2020
Procedural Posture
Class 1 Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. Da0273/19 / Orders Following Conciliation Conference Under S 34 of the Land and Environment Court Act 1979
Outcome
Appeal upheld; Development Application 0273/19 approved subject to conditions of consent; leave granted to amend the application; applicant ordered to pay respondent's costs.
Legal Topics
['development Application' 'seniors Housing' 'contravention of Development Standard' 'maximum Building Height' 'clause 4.6 Written Request' 'conciliation Conference Agreement']
['planning and Environment' 'development Consent' 'land and Environment Court Proceedings'] ['development Application' 'seniors Housing' 'contravention of Development Standard' 'maximum Building Height' 'clause 4.6 Written Request' 'conciliation Conference Agreement']

Case Brief

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Procedural Posture

Class 1 Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. Da0273/19 / Orders Following Conciliation Conference Under S 34 of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the Court could dispose of the proceedings in accordance with the parties' agreement under s 34(3) of the Land and Environment Court Act 1979." 'Whether the jurisdictional prerequisites in cl 29(2) of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 and cl 4.6 of Ku-ring-gai Local Environmental Plan 2015 were satisfied.' "Whether the applicant's written request adequately addressed that compliance with the 8m height development standard was unreasonable or unnecessary and that there were sufficient environmental planning grounds to justify contravention." 'Whether the proposed development was in the public interest because it was consistent with the objectives of the contravened development standard and the R2 Low Density Residential zone.']

Ratio Decidendi

Because the parties' agreed decision was one the Court could have made, and because the Court was satisfied that the applicant's cl 4.6 written request adequately addressed the required matters, that the height contravention was justified by environmental planning grounds, and that the proposal was in the public interest through consistency with the relevant development standard and zone objectives, the Court could grant development consent and dispose of the proceedings in accordance with the parties' agreement.

Court Disposition

Appeal upheld; Development Application 0273/19 approved subject to conditions of consent; leave granted to amend the application; applicant ordered to pay respondent's costs.

Orders

  • ['Leave is granted for the applicant to amend the application to rely on the amended and additional plans and documents referred to in Condition 1 of the conditions of consent at Annexure A.' "The applicant is to pay the respondent's costs in the amount of $10,000.00 pursuant to s 8.15(3) of the Environmental...