Terrano v Hunters Hill Council [2024] NSWLEC 1269

Terrano v Hunters Hill Council [2024] NSWLEC 1269

Because the parties agreed to grant consent to the amended development application subject to conditions, and the Commissioner was satisfied that the Court could make that decision in the proper exercise of its functions after considering the applicable statutory and planning controls, the Court was required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with the agreed decision. The appeal was therefore upheld and consent granted subject to conditions.

Jurisdiction
Australia
Judgment Date
22 May 2024
Procedural Posture
Class 1 Appeal Pursuant to Subs 8.7(1) of the Environmental Planning and Assessment Act 1979 Against the Actual Refusal of Development Application No. DA20230039 / Section 34 Conciliation Conference Following Mediation, With Agreement Between the Parties and Final Orders Made
Outcome
Appeal upheld; Development Application No. DA20230039, as amended, granted consent subject to conditions at Annexure A.
Legal Topics
['development Application Appeal' 'demolition and Construction of Dwelling' 'section 34 Conciliation Agreement' 'heritage Conservation Area' 'basix Affected Development' 'stormwater Management' 'vegetation Removal and Tree Transplanting' 'landscaped Area Compliance']
['planning and Environment Law' 'development Consent' 'land and Environment Court Procedure'] ['development Application Appeal' 'demolition and Construction of Dwelling' 'section 34 Conciliation Agreement' 'heritage Conservation Area' 'basix Affected Development' 'stormwater Management' 'vegetation Removal and Tree Transplanting' 'landscaped Area Compliance']

Case Brief

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Procedural Posture

Class 1 Appeal Pursuant to Subs 8.7(1) of the Environmental Planning and Assessment Act 1979 Against the Actual Refusal of Development Application No. DA20230039 / Section 34 Conciliation Conference Following Mediation, With Agreement Between the Parties and Final Orders Made

Legal Issues

  1. 1 ["Whether the Court could make orders under s 34 of the Land and Environment Court Act 1979 giving effect to the parties' agreement to grant consent to the amended development application." 'Whether Development Application No. DA20230039, as amended, satisfied applicable statutory and planning controls sufficiently for consent to be granted subject to conditions.' 'Whether matters including owner consent, public submissions, BASIX, contamination, vegetation removal, Sydney Harbour Catchment impacts, zoning, demolition, building height, heritage conservation, acid sulfate soils, earthworks, stormwater, landscaped area and the Hunters Hill Development Control Plan 2013 precluded the grant of consent.']

Ratio Decidendi

Because the parties agreed to grant consent to the amended development application subject to conditions, and the Commissioner was satisfied that the Court could make that decision in the proper exercise of its functions after considering the applicable statutory and planning controls, the Court was required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with the agreed decision. The appeal was therefore upheld and consent granted subject to conditions.

Court Disposition

Appeal upheld; Development Application No. DA20230039, as amended, granted consent subject to conditions at Annexure A.

Orders

  • ['The appeal is upheld.' "Development Application No. DA20230039, as amended, for demolition of the existing dwelling and construction of a new dwelling, front fence, swimming pool and landscaping at 4 Paul Street, Hunters Hill, is determined by the grant of consent subject to the conditions at Annexure 'A'."]