JFPG004 Pty Ltd ATF JFPG004 Unit Trust v Bega Valley Shire Council [2024] NSWLEC 1185

Land and Environment Court New South Wales

Medium Neutral Citation: JFPG004 Pty Ltd ATF JFPG004 Unit Trust v Bega Valley Shire Council [2024] NSWLEC 1185 Hearing dates: Conciliation conference held on 28 September, 23 October, 8 November, 12 December 2023, 19 February, 19 and 27 March 2024 Date of orders: 16 April 2024 Decision date: 16 April 2024 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that: (1) Leave is granted to the Applicant to amend Development Application DA2022.335.01 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A. (2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Development Application, as agreed or assessed. (3) The Applicant's written request, pursuant to cl 4.6 of the Bega Valley Local Environmental Plan 2013 (BVLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the BVLEP, is upheld. (4) The appeal is upheld. (5) Development consent is granted to Development Application DA2022.335.01 (as amended) for a seniors living development and associated works at 83 Lakewood Drive, Merimbula, subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION – seniors living – cl 4.6 written request – height of buildings – agreement between the parties – orders Legislation Cited: Biodiversity Conservation Act 2016 Environmental Planning and Assessment Act 1979, ss 4.16, 7.4, 8.7, 8.15 Land and Environment Court Act 1979, s 34 Bega Valley Local Environmental Plan 2013, cll 2.3, 4.3, 4.6, 5.10, 6.2, 6.4, 6.5, 6.6, 6.7, 6.8 Environmental Planning and Assessment Regulation 2021, ss 27, 38 State Environmental Planning Policy Amendment (Housing) 2023, cl 2.3 State Environmental Planning Policy (BASIX Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Housing) 2021, Pt 5, Sch 4, Div 6, ss 79, 84, 85, 87, 88, 93, 95, 96, 97, 98, 108 State Environmental Planning Policy (Industry and Employment) 2021, Ch 3 State Environmental Planning Policy (Resilience and Hazards) 2021, Chs 2, 4, ss 2.10, 2.11, 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48 Texts Cited: NSW Department of Planning and Environment, Planning Circular PS 18-003, February 2018 NSW Department of Planning and Environment, Seniors Living Policy: Urban Design Guidelines for Infill Development, March 2004 NSW Rural Fire Service, Planning for Bushfire Protection, December 2019 Category: Principal judgment Parties: JFPG004 Pty Ltd (ACN 649 585 035) ATF JFPG004 Unit Trust (Applicant) Bega Valley Shire Council (Respondent) Representation: Counsel: R White (Applicant) A Menyhart (Solicitor) (Respondent)