Mahony v Hunter’s Hill Council [2023] NSWLEC 1650

Mahony v Hunter’s Hill Council [2023] NSWLEC 1650

Because the amended proposal resolved the contentions, the relevant pre-jurisdictional requirements were satisfied, the cl 4.6 height variation request was justified, and the parties' agreed decision was one the Court could have made in the proper exercise of its functions, 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 parties' agreement.

Jurisdiction
Australia
Judgment Date
03 November 2023
Procedural Posture
Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Following Deemed Refusal of Development Application No DA20230023 / Mandatory Conciliation Conference; Agreement Under S 34(3) of the Land and Environment Court Act 1979 Approved and Orders Made
Outcome
The cl 4.6 written request was upheld, the appeal was upheld, and development consent was granted to Development Application No DA20230023 subject to conditions of consent at Annexure A.
Legal Topics
['alterations and Additions to Dwelling' 'clause 4.6 Variation to Height of Buildings Development Standard' 'deemed Refusal Appeal' 'conciliation Conference Agreement' 'local Heritage Item' 'floor Space Ratio' 'acid Sulfate Soils' 'stormwater Management' 'basix' 'site Contamination']
['environmental Planning and Assessment' 'development Consent' 'land and Environment Court Procedure' 'heritage Conservation'] ['alterations and Additions to Dwelling' 'clause 4.6 Variation to Height of Buildings Development Standard' 'deemed Refusal Appeal' 'conciliation Conference Agreement' 'local Heritage Item' 'floor Space Ratio' 'acid Sulfate Soils' 'stormwater Management' 'basix' 'site Contamination']

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Procedural Posture

Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Following Deemed Refusal of Development Application No DA20230023 / Mandatory Conciliation Conference; Agreement Under S 34(3) of the Land and Environment Court Act 1979 Approved and Orders Made

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 Applicant's written request under cl 4.6 of the Hunters Hill Local Environmental Plan 2012 justified contravention of the height of buildings development standard in cl 4.3." 'Whether relevant environmental planning instrument requirements, including zoning, heritage, floor space ratio, acid sulfate soils, excavation, stormwater, landscaped area, BASIX and contamination matters, were satisfied.']

Ratio Decidendi

Because the amended proposal resolved the contentions, the relevant pre-jurisdictional requirements were satisfied, the cl 4.6 height variation request was justified, and the parties' agreed decision was one the Court could have made in the proper exercise of its functions, 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 parties' agreement.

Court Disposition

The cl 4.6 written request was upheld, the appeal was upheld, and development consent was granted to Development Application No DA20230023 subject to conditions of consent at Annexure A.

Orders

  • ["The Applicant's written request pursuant to cl 4.6 of the Hunters Hill Local Environmental Plan 2012 seeking a variation to the development standard for height of buildings set out in cl 4.3 of the Hunters Hill Local Environmental Plan 2012 prepared by Paro Consulting dated 13 October 2023 is upheld." 'The appeal...