ZCMC Investments Pty Ltd v Inner West Council [2024] NSWLEC 1406

ZCMC Investments Pty Ltd v Inner West Council [2024] NSWLEC 1406

The Court was satisfied that the jurisdictional prerequisites were met, including owner consent, notification and consideration of submissions, BASIX certificates, contamination suitability, permissibility in Zone R1, acceptable heritage and stormwater impacts, and justified cl 4.6 variations. Because the parties' agreed decision was one the Court could have made in the proper exercise of its functions, s 34(3) of the Land and Environment Court Act 1979 required the proceedings to be disposed of in accordance with that decision by upholding the appeal and granting consent subject to conditions.

Jurisdiction
Australia
Judgment Date
17 July 2024
Procedural Posture
Class 1 Proceedings Under S 8.7 of the Environmental Planning and Assessment Act 1979 Arising From the Deemed Refusal of Development Application Da/2023/0653 / Orders Following Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979 and Agreement Between the Parties
Outcome
Appeal upheld; Development Application DA/2023/0653 granted consent subject to conditions at Annexure A; cl 4.6 variation requests upheld; Applicant ordered to pay Respondent's costs thrown away.
Legal Topics
['development Application' 'deemed Refusal Appeal' 'conciliation Conference' 'residential Flat Building' 'attached Dwellings' 'torrens Title Subdivision' 'clause 4.6 Variation Requests' 'minimum Subdivision Lot Size' 'landscaped Areas' 'site Coverage' 'floor Space Ratio' 'heritage Conservation Area' 'stormwater Management' 'costs Thrown Away']
['planning and Environment' 'development Consent' 'land and Environment Court Proceedings'] ['development Application' 'deemed Refusal Appeal' 'conciliation Conference' 'residential Flat Building' 'attached Dwellings' 'torrens Title Subdivision' 'clause 4.6 Variation Requests' 'minimum Subdivision Lot Size' 'landscaped Areas' 'site Coverage' 'floor Space Ratio' 'heritage Conservation Area' 'stormwater Management' 'costs Thrown Away']

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Procedural Posture

Class 1 Proceedings Under S 8.7 of the Environmental Planning and Assessment Act 1979 Arising From the Deemed Refusal of Development Application Da/2023/0653 / Orders Following Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979 and Agreement Between the Parties

Legal Issues

  1. 1 ["Whether the parties' agreed decision to uphold the appeal and grant development consent 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." 'Whether jurisdictional prerequisites to the grant of development consent under s 4.16 of the Environmental Planning and Assessment Act 1979 were satisfied.' "Whether the Applicant's written requests under cl 4.6 of the Inner West Local Environmental Plan 2022 justified contraventions of development standards for minimum subdivision lot size, landscaped areas, site coverage and floor space ratio." 'Whether the proposed development was acceptable having regard to contamination, zoning, heritage conservation area impacts and stormwater management.']

Ratio Decidendi

The Court was satisfied that the jurisdictional prerequisites were met, including owner consent, notification and consideration of submissions, BASIX certificates, contamination suitability, permissibility in Zone R1, acceptable heritage and stormwater impacts, and justified cl 4.6 variations. Because the parties' agreed decision was one the Court could have made in the proper exercise of its functions, s 34(3) of the Land and Environment Court Act 1979 required the proceedings to be disposed of in accordance with that decision by upholding the appeal and granting consent subject to conditions.

Court Disposition

Appeal upheld; Development Application DA/2023/0653 granted consent subject to conditions at Annexure A; cl 4.6 variation requests upheld; Applicant ordered to pay Respondent's costs thrown away.

Orders

  • ["The Applicant shall pay the Respondent's costs thrown away by reason of the amendment of the Development Application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $7,000 within 28 days of the date of this Order." "The Applicant's written request, pursuant to cl...