Tanous v Hunter’s Hill Council [2019] NSWLEC 1175

Tanous v Hunter’s Hill Council [2019] NSWLEC 1175

The Court found that the proposed development did not satisfy the minimum landscaped area requirement in cl 6.9(2)(b) of the Hunters Hill Local Environmental Plan 2012, that the deficiency could not be cured by the proposed condition without impermissible uncertainty and potential fundamental alteration of the development, and that no cl 4.6 written request had been submitted. The Court therefore had no jurisdictional power to grant consent and the development application had to be refused.

Jurisdiction
Australia
Judgment Date
17 April 2019
Procedural Posture
Class 1 Appeal Against Deemed Refusal of Development Application 2018/1071 / Hearing After Termination of Conciliation Under S 34 Aa(2)(b) of the Land and Environment Court Act 1979
Outcome
Appeal dismissed; Development Application 2018/1071 refused.
Legal Topics
['development Application' 'deemed Refusal Appeal' 'clause 4.6 Written Request' 'development Standards' 'landscaped Area' 'jurisdiction to Grant Consent' 'conditions of Consent']
['planning and Environment Law' 'development Consent'] ['development Application' 'deemed Refusal Appeal' 'clause 4.6 Written Request' 'development Standards' 'landscaped Area' 'jurisdiction to Grant Consent' 'conditions of Consent']

Case Brief

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Procedural Posture

Class 1 Appeal Against Deemed Refusal of Development Application 2018/1071 / Hearing After Termination of Conciliation Under S 34 Aa(2)(b) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether the proposed development satisfied cl 6.9 of the Hunters Hill Local Environmental Plan 2012 for landscaped area.' 'Whether any non-compliance with the landscaped area development standard could be addressed by a condition of consent.' 'Whether, in the absence of a cl 4.6 written request seeking variation of the landscaped area development standard, the Court had jurisdictional power to grant consent.']

Ratio Decidendi

The Court found that the proposed development did not satisfy the minimum landscaped area requirement in cl 6.9(2)(b) of the Hunters Hill Local Environmental Plan 2012, that the deficiency could not be cured by the proposed condition without impermissible uncertainty and potential fundamental alteration of the development, and that no cl 4.6 written request had been submitted. The Court therefore had no jurisdictional power to grant consent and the development application had to be refused.

Court Disposition

Appeal dismissed; Development Application 2018/1071 refused.

Orders

  • ['The appeal is dismissed.' 'Development Application 2018/1071 to demolish parts of an existing single storey dwelling, tree removal, and to construct additions and alterations to the remaining dwelling structure, with basement parking, on Lot 5 Section 7 DP 810, also known as 9 Grey Street, Henley is refused.' 'The...