Australia, June 20 -- New South Wales Land and Environment Court issued text of the following judgement on May 19:

1. COMMISSIONER: This appeal concerns a development application for the demolition of existing structures and the construction of a new five-storey commercial building with basement storage, four ground floor retail tenancies, three commercial tenancies, and two residential apartments at 3 Knox Street, Double Bay. A development application for an earlier iteration of the proposed development was lodged on 28 June 2023. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [11] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 9 May 2025. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement reflects that which was filed on 7 May 2025.

4. The agreement was the subject of some further changes and the final iteration was filed on 9 May 2025. The agreement follows the Council's approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021). The amendments are updated written requests concerning the breach of the height and floor space ratio (FSR) development standards, as well as an updated BASIX certificate.

5. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by an Agreed Jurisdictional Statement, which sets out the jurisdictional prerequisites to the exercise of the power to grant development consent (the Statement). I have considered the contents of the Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition A.3. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

6. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court could have made in the proper exercise of its functions, this being the test applied by s 34(3) of the LEC Act. This test is concerned with there being no jurisdictional constraints that preclude the making of orders in accordance with the decision that the parties' have agreed upon (see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [4], [51]). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

1) The proposed development is for the purpose of commercial premises and shop top housing, which are both nominated permissible uses in the E1 Local Centre zone, pursuant to the Woollahra Local Environmental Plan 2014 (WLEP).

2) The proposed development breaches the height development standard of 14.7m, which applies pursuant to cl 4.3 of the WLEP. The proposed development has a height of 18.84m to the roof parapet, and 19.64m to the top of the screening around the Air Conditioner condensers.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196cc9cc30d99a3718d5812e)

Disclaimer: Curated by HT Syndication.