Zitianellis v Mosman Municipal Council [2020] NSWLEC 1288

Zitianellis v Mosman Municipal Council [2020] NSWLEC 1288

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 grant of consent to the amended development application subject to conditions was a decision the Court could make, including because the development was permissible in the R2 Low Density Residential zone, complied with applicable development standards, was accompanied by a BASIX Certificate, contamination had been considered, and notification requirements had been satisfied, the Court was required to dispose of the proceedings in accordance with the agreed decision.

Jurisdiction
Australia
Judgment Date
06 July 2020
Procedural Posture
Class 1 Development Application Appeal / Conciliation Conference; Agreement Between the Parties; Orders
Outcome
Appeal upheld; development application approved subject to conditions.
Legal Topics
['development Application' 'conciliation Conference' 'section 34 Agreement' 'demolition and Construction of Dwelling House' 'conditions of Consent']
['planning and Environment Law' 'development Consent'] ['development Application' 'conciliation Conference' 'section 34 Agreement' 'demolition and Construction of Dwelling House' 'conditions of Consent']

Case Brief

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Procedural Posture

Class 1 Development Application Appeal / Conciliation Conference; Agreement Between the Parties; Orders

Legal Issues

  1. 1 ['Whether leave should be granted to amend the development application and rely on amended plans.' 'Whether the agreed decision to grant development consent subject to conditions was a decision the Court could make in the proper exercise of its functions.' 'Whether the jurisdictional preconditions for granting consent to the amended development application were met.']

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 grant of consent to the amended development application subject to conditions was a decision the Court could make, including because the development was permissible in the R2 Low Density Residential zone, complied with applicable development standards, was accompanied by a BASIX Certificate, contamination had been considered, and notification requirements had been satisfied, the Court was required to dispose of the proceedings in accordance with the agreed decision.

Court Disposition

Appeal upheld; development application approved subject to conditions.

Orders

  • ['The applicant is granted leave to amend the development application and rely on the amended plans referred to in Condition 1 of Annexure "A".' 'The appeal is upheld.' 'Development Application 8.2019.150.1 for the demolition of existing dwelling and swimming pool and the construction of a new two storey dwelling...