Brenham Pty Ltd v North Sydney Council [2019] NSWLEC 1212

Brenham Pty Ltd v North Sydney Council [2019] NSWLEC 1212

Because the parties reached agreement at the s 34 conciliation conference and the agreed decision was one the Court could make, and because the proposal would have an acceptable impact on the heritage significance of the item by maintaining public domain views of the front elevation and garden of the historic Victorian residence, the appeal was upheld and the modification application was approved subject to consolidated conditions of consent.

Jurisdiction
Australia
Judgment Date
15 May 2019
Procedural Posture
Class 1 Appeal Under S 8.9 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Modification Application / Conciliation Conference Under S 34 of the Land and Environment Court Act 1979; Agreement Between the Parties; Final Orders
Outcome
The appeal is upheld. Modification Application No. 382/14/2 is approved, subject to the consolidated conditions of consent at Annexure A.
Legal Topics
['modification Application' 'development Consent' 'conciliation Conference' 'internal Secondary Palisade Fence and Gate' 'state Heritage Item']
['planning and Environment' 'heritage'] ['modification Application' 'development Consent' 'conciliation Conference' 'internal Secondary Palisade Fence and Gate' 'state Heritage Item']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 8.9 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Modification Application / Conciliation Conference Under S 34 of the Land and Environment Court Act 1979; Agreement Between the Parties; Final Orders

Legal Issues

  1. 1 ['Whether Modification Application No. 382/14/2 to modify Development Consent 382/14 to increase the height of the internal secondary palisade fence and gate should be approved.' "Whether the parties' agreed decision was a decision that the Court could have made in the proper exercise of its functions." 'Whether the proposal would have an acceptable impact on the heritage significance of the State heritage item.']

Ratio Decidendi

Because the parties reached agreement at the s 34 conciliation conference and the agreed decision was one the Court could make, and because the proposal would have an acceptable impact on the heritage significance of the item by maintaining public domain views of the front elevation and garden of the historic Victorian residence, the appeal was upheld and the modification application was approved subject to consolidated conditions of consent.

Court Disposition

The appeal is upheld. Modification Application No. 382/14/2 is approved, subject to the consolidated conditions of consent at Annexure A.

Orders

  • ['The appeal is upheld.' 'Modification Application No. 382/14/2 to modify Development Consent 382/14 to increase the height of the internal secondary palisade fence and gate located behind the existing front boundary fence, is approved, subject to the consolidated conditions of consent at Annexure A.']