Ashley v Hunter’s Hill Council [2024] NSWLEC 1033

Ashley v Hunter’s Hill Council [2024] NSWLEC 1033

Because the parties reached an agreement under s 34(3) and the Commissioner was satisfied that the amended development application met the relevant jurisdictional and statutory requirements, that the cl 4.6 variation request for landscaped area should be upheld, and that there was no jurisdictional impediment to the agreed orders, the Court was required to dispose of the proceedings in accordance with the agreed decision granting consent subject to conditions.

Jurisdiction
Australia
Judgment Date
01 February 2024
Procedural Posture
Class 1 Development Application Appeal Against Deemed Refusal / Conciliation Conference Under S 34 AA of the Land and Environment Court Act 1979; Agreement Under S 34(3)
Outcome
Appeal upheld; development consent granted to the amended development application subject to conditions in Annexure A.
Legal Topics
['development Application Appeal' 'secondary Dwelling' 'alterations and Additions to Residential Dwelling and Garage' 'conciliation Conference Agreement' 'clause 4.6 Variation Request' 'heritage Conservation' 'stormwater Management' 'landscaped Area Development Standard']
['planning and Environment Law' 'development Consent' 'land Use Planning'] ['development Application Appeal' 'secondary Dwelling' 'alterations and Additions to Residential Dwelling and Garage' 'conciliation Conference Agreement' 'clause 4.6 Variation Request' 'heritage Conservation' 'stormwater Management' 'landscaped Area Development Standard']

Case Brief

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Procedural Posture

Class 1 Development Application Appeal Against Deemed Refusal / Conciliation Conference Under S 34 AA of the Land and Environment Court Act 1979; Agreement Under S 34(3)

Legal Issues

  1. 1 ["Whether the Court could make orders giving effect to the parties' agreement under s 34(3) of the Land and Environment Court Act 1979." 'Whether development consent should be granted for the amended development application for a first floor addition over an existing garage and use as a secondary dwelling.' 'Whether the written request under cl 4.6 of Hunters Hill Local Environmental Plan 2012 justified variation of the landscaped area development standard in cl 6.9.' 'Whether relevant statutory preconditions and planning controls, including owner consent, BASIX, contamination, zoning, height, floor space ratio, secondary dwelling floor area, heritage and stormwater requirements, were satisfied.']

Ratio Decidendi

Because the parties reached an agreement under s 34(3) and the Commissioner was satisfied that the amended development application met the relevant jurisdictional and statutory requirements, that the cl 4.6 variation request for landscaped area should be upheld, and that there was no jurisdictional impediment to the agreed orders, the Court was required to dispose of the proceedings in accordance with the agreed decision granting consent subject to conditions.

Court Disposition

Appeal upheld; development consent granted to the amended development application subject to conditions in Annexure A.

Orders

  • ['The appeal is upheld.' 'Development application number DA20230005, as amended, for construction of a first floor addition over the existing garage and its use as a secondary dwelling on land identified as Lot 1 in Deposited Plan 929967 an known as 9 Alexandra Street, Hunters Hill NSW 2110, is determined by the...