McCusker v North Sydney Council [2024] NSWLEC 1203

McCusker v North Sydney Council [2024] NSWLEC 1203

Because the owner consent, notification, contamination, BASIX exemption, biodiversity and conservation, zoning, demolition, heritage and earthworks matters had been addressed, the Commissioner was satisfied that the agreed decision to uphold the appeal and grant development consent subject to conditions was one the Court could have made in the proper exercise of its functions, and was therefore required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with that decision.

Jurisdiction
Australia
Judgment Date
19 April 2024
Procedural Posture
Class 1 Appeal From Deemed Refusal of Development Application Da325/23 Under S 8.7 of the Environmental Planning and Assessment Act 1979 / Orders Following Conciliation Conference Under S 34 AA of the Land and Environment Court Act 1979 and Agreement Between the Parties
Outcome
Appeal upheld; Development Application DA325/23 determined by grant of development consent subject to conditions in Annexure A.
Legal Topics
['development Application' 'deemed Refusal' 'conciliation Conference' 'demolition of Verandah to Heritage Item' 'contamination Consideration' 'sydney Harbour Biodiversity and Conservation Provisions' 'earthworks']
['planning and Environment' 'development Consent' 'heritage'] ['development Application' 'deemed Refusal' 'conciliation Conference' 'demolition of Verandah to Heritage Item' 'contamination Consideration' 'sydney Harbour Biodiversity and Conservation Provisions' 'earthworks']

Case Brief

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Procedural Posture

Class 1 Appeal From Deemed Refusal of Development Application Da325/23 Under S 8.7 of the Environmental Planning and Assessment Act 1979 / Orders Following Conciliation Conference Under S 34 AA of the Land and Environment Court Act 1979 and Agreement Between the Parties

Legal Issues

  1. 1 ["Whether the parties' agreed decision to uphold the appeal and grant development consent subject to conditions was one the Court could have made in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979." 'Whether jurisdictional prerequisites for granting consent to Development Application DA325/23 were satisfied.' 'Whether the proposed development was acceptable having regard to contamination, biodiversity and conservation, zoning, demolition, heritage and earthworks provisions.']

Ratio Decidendi

Because the owner consent, notification, contamination, BASIX exemption, biodiversity and conservation, zoning, demolition, heritage and earthworks matters had been addressed, the Commissioner was satisfied that the agreed decision to uphold the appeal and grant development consent subject to conditions was one the Court could have made in the proper exercise of its functions, and was therefore required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with that decision.

Court Disposition

Appeal upheld; Development Application DA325/23 determined by grant of development consent subject to conditions in Annexure A.

Orders

  • ['The appeal is upheld.' 'Development Application DA325/23, seeking consent for the demolition of the southern and eastern verandah of the existing dwelling known as "Bovington" at 66 Shellcove Road, Neutral Bay is determined by the grant of development consent subject to the conditions in Annexure A.']