Atlen Construction Pty Ltd v Hunter’s Hill Council [2019] NSWLEC 1328

Atlen Construction Pty Ltd v Hunter’s Hill Council [2019] NSWLEC 1328

The Court was satisfied that the parties' agreed decision was one it could have made in the proper exercise of its functions because the cl 4.6 written request adequately justified the 0.6m height contravention, demonstrated sufficient environmental planning grounds, and showed consistency with the objectives of the zone and standard; the SEPP65 design verification requirement was also satisfied. Accordingly, s 34(3) required the Court to dispose of the proceedings in accordance with the parties' agreement.

Jurisdiction
Australia
Judgment Date
12 July 2019
Procedural Posture
Class 1 Development Appeal Against Deemed Refusal of Development Application No. 2017 1199 Under S 8.7 of the Environmental Planning and Assessment Act 1979 / Orders Made Following Conciliation Conference Under S 34 of the Land and Environment Court Act 1979
Outcome
Appeal upheld; development application approved subject to conditions.
Legal Topics
['development Appeal' 'conciliation Conference' 'shop Top Housing' 'residential Apartment Development' 'clause 4.6 Variation' 'height of Buildings Development Standard']
['planning and Environment' 'development Consent'] ['development Appeal' 'conciliation Conference' 'shop Top Housing' 'residential Apartment Development' 'clause 4.6 Variation' 'height of Buildings Development Standard']

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Procedural Posture

Class 1 Development Appeal Against Deemed Refusal of Development Application No. 2017 1199 Under S 8.7 of the Environmental Planning and Assessment Act 1979 / Orders Made Following Conciliation Conference Under S 34 of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the parties' agreed decision was a decision 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 the applicant's written request under cl 4.6 of the Hunters Hill Local Environmental Plan 2012 justified contravention of the height of buildings development standard in cl 4.3." 'Whether applicable jurisdictional prerequisites, including SEPP65 design verification requirements, were satisfied.']

Ratio Decidendi

The Court was satisfied that the parties' agreed decision was one it could have made in the proper exercise of its functions because the cl 4.6 written request adequately justified the 0.6m height contravention, demonstrated sufficient environmental planning grounds, and showed consistency with the objectives of the zone and standard; the SEPP65 design verification requirement was also satisfied. Accordingly, s 34(3) required the Court to dispose of the proceedings in accordance with the parties' agreement.

Court Disposition

Appeal upheld; development application approved subject to conditions.

Orders

  • ['The Applicant is granted leave to rely on the amended plans listed in condition 2 in Part A of the conditions of consent contained at Annexure "A".' "The Applicant's written request under clause 4.6 of the HHLEP prepared by Hamptons Property Services dated July 2019 for contravention of the height standard imposed...