Ghamraoui v Tweed Shire Council [2024] NSWLEC 1140

Land and Environment Court New South Wales

Medium Neutral Citation: Ghamraoui v Tweed Shire Council [2024] NSWLEC 1140 Hearing dates: 29 February 2024 Date of orders: 26 March 2024 Decision date: 26 March 2024 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) Leave is granted to the Applicant to amend Development Application No. DA 22/0795, and rely on the Further Amended Application, so amended by the following: (a) Architectural Plans, Revision K, dated 27 February 2024, prepared by Tony Owen Architects Pty Ltd; (b) BASIX Certificate 1347964M_03 prepared by ESD SYNERGY PTY LTD and dated 28 February 2024. (2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amendment of the application for development consent in the sum of $7,500 within 28 days of this order. (3) The Applicant's written request pursuant to cl 4.6 of Tweed City Centre Local Environmental Plan 2012 (TCCLEP) seeking to justify contravention of the height of building standard under cl 4.3 of the TCCLEP has been considered and the necessary opinion of satisfaction has been formed under clause 4.6(4) of TCCLEP. (4) The appeal is upheld. (5) Development consent is granted to Development Application No. DA 22/0795 for consolidation of two (2) allotments, construction of a nine-storey residential flat building containing three basement levels and 53 apartments; car parking, civil works and landscaping at premises known as 41 and 43 Boyd Street, Tweed Heads, subject to the conditions of consent in Annexure 'A'. Catchwords: DEVELOPMENT APPLICATION: Residential apartment development – residential flat development in R3 Medium Density Residential zone – conciliation conference – agreement between parties – orders Legislation Cited: Architects Act 2003 Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15 Land and Environment Court Act 1979, s 34 Water Management Act 2000 Environmental Planning and Assessment Regulation 2021, ss 29, 38 State Environmental Planning Policy Amendment (Housing) 2023, State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Housing) 2021, Sch 7A State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, cl 28 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2 Tweed City Centre Local Environmental Plan 2012, cll 2.7, 4.3, 4.4, 4.6, 5.21, 6.1, 6.10 Cases Cited: Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 117 Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61 Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115 Texts Cited: Apartment Design Guide National Construction Code Tweed City Centre Development Control Plan 2008 Category: Principal judgment Parties: Harry Ghamraoui (Applicant) Tweed Shire Council (Respondent) Representation: Counsel: A Pickles SC (Applicant) S Paterson (Solicitor) (Respondent)