Youssef Corp Pty Ltd v Bayside Council [2021] NSWLEC 1540

Youssef Corp Pty Ltd v Bayside Council [2021] NSWLEC 1540

Because the parties reached an agreement under s 34(3), the relevant jurisdictional requirements were satisfied, the cl 4.6 written request adequately justified the minor 16.255m building height contravention of the 16m standard, and the proposed development was consistent with the objectives of the height standard and B4 Mixed Use zone, the agreed decision was one the Court could make in the proper exercise of its functions; accordingly the appeal was upheld and development consent was granted subject to conditions.

Jurisdiction
Australia
Judgment Date
17 September 2021
Procedural Posture
Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application DA 2020/161 / Conciliation Conference Under S 34 of the Land and Environment Court Act 1979; Agreement Reached and Orders Made
Outcome
Appeal upheld; cl 4.6 written request upheld; development consent granted subject to conditions; Applicant to pay Respondent's thrown away costs as agreed or assessed.
Legal Topics
['development Application Appeal' 'conciliation Conference' 'cl 4.6 Written Request' 'height of Buildings Development Standard' 'mixed Use Development' 'state Environmental Planning Policies']
['environmental and Planning Law' 'development Consent' 'land and Environment Court Procedure'] ['development Application Appeal' 'conciliation Conference' 'cl 4.6 Written Request' 'height of Buildings Development Standard' 'mixed Use Development' 'state Environmental Planning Policies']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application DA 2020/161 / Conciliation Conference Under S 34 of the Land and Environment Court Act 1979; Agreement Reached and Orders Made

Legal Issues

  1. 1 ['Whether the agreement reached under s 34(3) of the Land and Environment Court Act 1979 was a decision the Court could make in the proper exercise of its functions.' 'Whether the amended development application satisfied relevant jurisdictional requirements under environmental planning instruments and regulations.' "Whether the Applicant's written request under cl 4.6 of the Rockdale Local Environmental Plan 2011 justified contravention of the height of buildings development standard in cl 4.3." 'Whether development consent should be granted to DA-2020/161 subject to agreed conditions.']

Ratio Decidendi

Because the parties reached an agreement under s 34(3), the relevant jurisdictional requirements were satisfied, the cl 4.6 written request adequately justified the minor 16.255m building height contravention of the 16m standard, and the proposed development was consistent with the objectives of the height standard and B4 Mixed Use zone, the agreed decision was one the Court could make in the proper exercise of its functions; accordingly the appeal was upheld and development consent was granted subject to conditions.

Court Disposition

Appeal upheld; cl 4.6 written request upheld; development consent granted subject to conditions; Applicant to pay Respondent's thrown away costs as agreed or assessed.

Orders

  • ["The Applicant is to pay the Respondent's costs that have been thrown away as a result of the amendment of the application for development consent under section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed." "The Applicant's amended written request under cl 4.6 of the...