Qiu v Hunters Hill Council [2021] NSWLEC 1589

Qiu v Hunters Hill Council [2021] NSWLEC 1589

Because the parties reached an agreement at a s 34 conciliation conference and the agreed decision was one the Court could make in the proper exercise of its functions, and because the Court was satisfied that the cl 4.6 written request adequately justified the contravention of the height of buildings development standard, that sufficient environmental planning grounds existed including prior excavation of the site, that the proposal was consistent with the objectives of the height standard and the R2 Low Density Residential zone, and that heritage and harbour scenic impacts were acceptable, the appeal was upheld and development consent was granted subject to conditions.

Jurisdiction
Australia
Judgment Date
07 October 2021
Procedural Posture
Class 1 Appeal Against Refusal of Development Application No. 2020/1223 / Decision Following Conciliation Conference Under S 34 of the Land and Environment Court Act 1979
Outcome
Appeal upheld; Development Application No. 2020/1223 approved subject to conditions of consent at Annexure A.
Legal Topics
['development Application Appeal' 'conciliation Conference Agreement' 'clause 4.6 Variation to Height of Buildings Development Standard' 'heritage Conservation Area' 'sydney Harbour Catchment Considerations']
['environmental Planning and Assessment' 'land and Environment' 'development Consent'] ['development Application Appeal' 'conciliation Conference Agreement' 'clause 4.6 Variation to Height of Buildings Development Standard' 'heritage Conservation Area' 'sydney Harbour Catchment Considerations']

Case Brief

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Procedural Posture

Class 1 Appeal Against Refusal of Development Application No. 2020/1223 / Decision Following Conciliation Conference Under S 34 of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the Court should dispose of the proceedings in accordance with the parties' agreement under s 34(3) of the Land and Environment Court Act 1979." "Whether Development Application No. 2020/1223, as amended, could be approved in the proper exercise of the Court's functions under s 4.16 of the Environmental Planning and Assessment Act 1979." "Whether the applicant's written request adequately addressed cl 4.6(3) of the Hunters Hill Local Environmental Plan 2012 for contravention of the height of buildings development standard." 'Whether the proposed development would be in the public interest because it is consistent with the objectives of the height of buildings development standard and the R2 Low Density Residential zone.' 'Whether the proposal would affect the heritage significance of the Hunters Hill Heritage Conservation Area, the nearby heritage item, or the scenic quality of the harbour.']

Ratio Decidendi

Because the parties reached an agreement at a s 34 conciliation conference and the agreed decision was one the Court could make in the proper exercise of its functions, and because the Court was satisfied that the cl 4.6 written request adequately justified the contravention of the height of buildings development standard, that sufficient environmental planning grounds existed including prior excavation of the site, that the proposal was consistent with the objectives of the height standard and the R2 Low Density Residential zone, and that heritage and harbour scenic impacts were acceptable, the appeal was upheld and development consent was granted subject to conditions.

Court Disposition

Appeal upheld; Development Application No. 2020/1223 approved subject to conditions of consent at Annexure A.

Orders

  • ['The appeal is upheld.' 'Development Application No. 2020/1223 for a low-pitched metal clad roof over an existing lift and stair lobby structure and a roof terrace, at 28 Lyndhurst Crescent, Hunters Hill, is approved, subject to the conditions of consent at Annexure A.']