Bugeja v Hawkesbury City Council [2019] NSWLEC 1219

Bugeja v Hawkesbury City Council [2019] NSWLEC 1219

Because the development application was properly made, the proposed dwelling house and tourist and visitor accommodation were permissible in the RU1 Primary Production Zone, the agreed conditions prevented the proposal from being properly characterised as prohibited dual occupancy (detached) development, and the requirements of cl 7 of SEPP 55 were addressed, the parties' agreed decision to grant consent subject to conditions was one the Court could have made in the proper exercise of its functions. The Court was therefore required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with that agreement.

Jurisdiction
Australia
Judgment Date
22 May 2019
Procedural Posture
Class 1 Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Application Da0027/18 / Decision Following Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979 and Agreement Between the Parties
Outcome
Appeal upheld; Development Application No DA0027/18, as amended, granted subject to conditions of consent.
Legal Topics
['development Application' 'deemed Refusal Appeal' 'conciliation Conference' 'agreement Between the Parties' 'jurisdictional Prerequisites' 'permissibility of Development' 'ru1 Primary Production Zone' 'tourist and Visitor Accommodation' 'serviced Apartment' 'dual Occupancy (detached)' 'remediation of Land']
['planning and Environment Law' 'development Consent'] ['development Application' 'deemed Refusal Appeal' 'conciliation Conference' 'agreement Between the Parties' 'jurisdictional Prerequisites' 'permissibility of Development' 'ru1 Primary Production Zone' 'tourist and Visitor Accommodation' 'serviced Apartment' 'dual Occupancy (detached)' 'remediation of Land']

Case Brief

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Procedural Posture

Class 1 Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Application Da0027/18 / Decision Following Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979 and Agreement Between the Parties

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 jurisdictional prerequisites for granting consent under s 4.16 of the Environmental Planning and Assessment Act 1979 were satisfied.' 'Whether the proposed development was permissible in the RU1 Primary Production Zone under Hawkesbury LEP 2012 and properly characterised as not being dual occupancy (detached) development.' 'Whether the requirements of cl 7 of State Environmental Planning Policy No 55—Remediation of Land were addressed.']

Ratio Decidendi

Because the development application was properly made, the proposed dwelling house and tourist and visitor accommodation were permissible in the RU1 Primary Production Zone, the agreed conditions prevented the proposal from being properly characterised as prohibited dual occupancy (detached) development, and the requirements of cl 7 of SEPP 55 were addressed, the parties' agreed decision to grant consent subject to conditions was one the Court could have made in the proper exercise of its functions. The Court was therefore required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with that agreement.

Court Disposition

Appeal upheld; Development Application No DA0027/18, as amended, granted subject to conditions of consent.

Orders

  • ['The Applicant is granted leave to amend Development Application No DA0027/18 and to rely upon the amended architectural plans annexed and marked "A" and the Updated Plan of Management prepared by Haskew de Chalain Planning, dated April 2019.' 'The appeal is upheld.' 'Development Application No DA0027/18, as...