Backhouse v Northern Beaches Council [2022] NSWLEC 1070

Backhouse v Northern Beaches Council [2022] NSWLEC 1070

The Court was satisfied that the relevant jurisdictional prerequisites had been met, including consideration of contamination, BASIX requirements, Warringah Local Environmental Plan 2011 controls and Warringah Development Control Plan 2011 matters. Because the parties' agreed decision was one the Court could have made in the proper exercise of its functions, s 34(3) of the Land and Environment Court Act 1979 required the Court to dispose of the proceedings in accordance with that agreement.

Jurisdiction
Australia
Judgment Date
14 February 2022
Procedural Posture
Class 1 Development Application Appeal Against Deemed Refusal/subsequent Refusal / Section 34 Conciliation Conference; Parties Reached Agreement and Consent Orders Were Made
Outcome
Appeal upheld; Development Application No. DA2021/0905 approved subject to conditions of consent in Annexure 'A'.
Legal Topics
['development Application' 'conciliation Conference' 'development Consent' 'jurisdictional Prerequisites' 'basix' 'contamination' 'local Environmental Plan Controls' 'development Control Plan Controls']
['planning and Environment Law'] ['development Application' 'conciliation Conference' 'development Consent' 'jurisdictional Prerequisites' 'basix' 'contamination' 'local Environmental Plan Controls' 'development Control Plan Controls']

Case Brief

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Procedural Posture

Class 1 Development Application Appeal Against Deemed Refusal/subsequent Refusal / Section 34 Conciliation Conference; Parties Reached Agreement and Consent Orders Were Made

Legal Issues

  1. 1 ["Whether the parties' agreement to uphold the appeal and grant development consent subject to conditions 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 jurisdictional prerequisites for granting consent to Development Application No. DA2021/0905 under the Environmental Planning and Assessment Act 1979 and relevant planning instruments were satisfied.']

Ratio Decidendi

The Court was satisfied that the relevant jurisdictional prerequisites had been met, including consideration of contamination, BASIX requirements, Warringah Local Environmental Plan 2011 controls and Warringah Development Control Plan 2011 matters. Because the parties' agreed decision was one the Court could have made in the proper exercise of its functions, s 34(3) of the Land and Environment Court Act 1979 required the Court to dispose of the proceedings in accordance with that agreement.

Court Disposition

Appeal upheld; Development Application No. DA2021/0905 approved subject to conditions of consent in Annexure 'A'.

Orders

  • ['The appeal is upheld.' "Development Application No. DA2021/0905 for the demolition of existing structures, tree removal and excavation, and construction of a three storey dwelling house with two (2) levels of basement with a swimming pool and associated landscaping at 53 Wheeler Parade, Dee Why (Lot A, DP 338618)...