A recent judgement in the Land and Environment Court has developed a test to determine what preconditions the Court needs to be satisfied of when considering an Applicant’s application to contravene a development standard. The decision in Mount Annan 88 Pty Ltd v Camden Council [2016] NSWLEC 1072 determined that Clause 4.6 of the standardised LEP imposes four preconditions the Court needs to be satisfied of when exercising its power to grant consent to a proposed development that contravenes development standards.
The Court considered Clause 4.6 and held that it imposes four preconditions on the Court in exercising the power to grant consent to a proposed development.
1. The Court must be satisfied that the proposed development will be consistent with the objectives of the zone – cl 4.6(4)(a)(ii)
2. The Court must be satisfied that the proposed development will be consistent with the objectives of the standard in question – cl 4.6(4)(a)(ii)
3. The Court must consider a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and with the Court finding that the matters required to be demonstrated have been adequately addressed – cl 4.6(3)(a) and cl 4.6(4)(a)(i)
4. The Court must consider a written request that demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard and with the Court finding that the matters required to be demonstrated have been adequately addressed – cl 4.6(3)(b) and cl 4.6(4)(a)(i)
A negative finding for any precondition must see the appeal dismissed but a positive finding would enliven the power to grant development consent subject to a merit assessment.
MatthewsFolbigg Lawyers, Parramatta, are specialist environmental lawyers who are able to advise in relation to all matters relating to governance, planning and environmental law. Call an expert environmental lawyer today on 1800 300 308.
