Attard v Ku-ring-gai Council [2020] NSWLEC 1041

Attard v Ku-ring-gai Council [2020] NSWLEC 1041

Because the parties reached an agreement under s 34(3) of the Land and Environment Court Act 1979 and the Commissioner was satisfied that the agreed decision was one the Court could make in the proper exercise of its functions, including because the development was permissible with consent, had regard to heritage provisions, retained significant trees, had owner's consent and authorised no works on adjoining land, the Court was required to dispose of the proceedings in accordance with the agreement by granting leave to amend, upholding the appeal and approving the development application subject to conditions.

Jurisdiction
Australia
Judgment Date
30 January 2020
Procedural Posture
Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Application No Da0260/19 / Final Orders Following Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979 and Agreement Under S 34(3)
Outcome
Appeal upheld; Development Application DA0260/19 approved subject to the conditions in Annexure A; leave granted to amend the development application.
Legal Topics
['development Application' 'deemed Refusal Appeal' 'dwelling House' 'conciliation Conference' 'development Consent Subject to Conditions']
['planning and Environment Law'] ['development Application' 'deemed Refusal Appeal' 'dwelling House' 'conciliation Conference' 'development Consent Subject to Conditions']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Application No Da0260/19 / Final Orders Following Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979 and Agreement Under S 34(3)

Legal Issues

  1. 1 ['Whether the applicant should be granted leave to amend the development application to remove demolition of existing structures and rely on revised plans.' "Whether the parties' agreement to uphold the appeal and grant development consent subject to conditions was a decision the Court could make in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979." 'Whether Development Application DA0260/19 for a new dwelling, front fence, pool and associated works at 73 Pymble Avenue, Pymble should be approved subject to conditions.']

Ratio Decidendi

Because the parties reached an agreement under s 34(3) of the Land and Environment Court Act 1979 and the Commissioner was satisfied that the agreed decision was one the Court could make in the proper exercise of its functions, including because the development was permissible with consent, had regard to heritage provisions, retained significant trees, had owner's consent and authorised no works on adjoining land, the Court was required to dispose of the proceedings in accordance with the agreement by granting leave to amend, upholding the appeal and approving the development application subject to conditions.

Court Disposition

Appeal upheld; Development Application DA0260/19 approved subject to the conditions in Annexure A; leave granted to amend the development application.

Orders

  • ['The Applicant is granted leave to amend the development application to remove that part of the development application that seeks demolition of existing structures and to rely upon the plans referred to in condition 1 of Annexure A.' 'The Appeal is upheld.' 'Development Application DA0260/19 for the construction...