APPEAL — development application — residential flat building — low to mid-rise housing — conciliation conference — agreement between the parties — orders
Quick Take
1Under s 34(3) of the Land and Environment Court Act 1979 (NSW), a commissioner must dispose of proceedings in accordance with the parties' decision once two conditions are met: a signed s 34 agreement is provided, and the commissioner is satisfied the decision is one the Court could have made in the proper exercise of its functions (McMillan v Taylor (2023) 111 NSWLR 634 at [4], [51]). Doing so involves no evaluative judgment on the matters originally in dispute or on the discretionary s 4.15 merits.
2Where a site is within the 400 m 'inner area' of a town centre, Chapter 6 of State Environmental Planning Policy (Housing) 2021 may be relied on to exceed lower LEP controls. Section 175(2) permits a maximum height of 22 m for buildings of six storeys or less, and s 180(2) permits a maximum FSR of 2.2:1 for residential flat buildings in an R3 zone. On the facts, a five-storey building of 20.65 m with an FSR of 1.66:1 complied, despite a 12 m height limit and a 0.9:1 FSR in the LEP.
3Where a development application is amended under s 38 of the Environmental Planning and Assessment Regulation 2021 in a Class 1 appeal, the applicant may be ordered under s 8.15(3) of the Environmental Planning and Assessment Act 1979 to pay the council's costs thrown away, which may be fixed in an agreed amount.
