Consent orders and the Court’s power not to make them: Billyard Avenue Developments v City of Sydney
In the recent decision of Commissioner Walsh in Billyard Avenue Developments Pty Limited ATF Billyard Avenue Development Trust v The Council of the City of Sydney [2024] NSWLEC 1825, the Court declined to make consent orders, and refused to grant development consent for the construction of a new residential flat building in Elizabeth Bay on the basis that the Court had no power to do so.
The proposed residential flat building would result in a reduction of housing stock from the 28 existing dwellings on the site to 20 dwellings. The proposed development also breached the applicable height control, relying on a written variation request pursuant to clause 4.6 of the relevant local environmental plan to justify the contravention.
The applicable version of that clause, which applied prior to State-wide changes in November 2023, required (inter alia) that the consent authority be satisfied that ‘the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out…’. Previous case law had established that the Court on appeal must be directly satisfied as to this matter in order to grant development consent.
The Commissioner found that the proposed development was not in the public interest because it was inconsistent with an objective of the R1 General Residential zone to ‘provide for the housing needs of the community’, as the proposed development would (per [91]):
- decrease housing provision overall; and
- decrease the availability of more affordable housing.
The Court found that each of these aspects of the proposal work against the first R1 zone objective referred to above.
Given that the fatal matter in this case related to a pre-condition to the granting of development consent, it would also have defeated a conciliated agreement under section 34 of the Land and Environment Court Act 1979 (NSW).
However, the Court’s powers go further where the parties propose to deal with a matter by consent orders, in that the Court is also required to evaluate the merits of the relevant development application.
In carrying out a merit assessment, the Commissioner in this case also found that the proposal failed on its merits. In doing so, the Commissioner weighed the positive impacts, being:
- the proposed development’s promotion of the economic use and development of the land;
- the proposed development’s contribution to the construction sector; and
- the benefits to the economic welfare of the community through including additional housing mix by providing more 3+-bedroom residences;
against the negative impacts of the development, being:
- the reduction in housing supply which meets community need; and
- various residual adverse amenity impacts, including view impacts, visual bulk in excess of height controls, and general neighbour annoyance associated with demolition and construction of a significant-scale project of this kind, which the Court characterised as ‘moderate’ (at [138]).
In carrying out that comparative task, the Commissioner found that the negative impacts outweighed the positive impacts. However, the Commissioner noted that, had the proposal sought to increase housing supply, then the weightings could be reversed.
Key takeaways
This case serves as a timely reminder to pay attention to both the jurisdictional and merits aspects of a case, even in instances of consent orders or a conciliated agreement – because an agreement between the parties is no guarantee that the Court will grant a particular outcome.
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