Wheatley v Ku-ring-gai Council [2021] NSWLEC 1386

Wheatley v Ku-ring-gai Council [2021] NSWLEC 1386

Because the Court was satisfied that the agreed decision was one it could have made in the proper exercise of its functions, including because the R2 Low Density Residential zoning permitted dwelling house development with consent, the proposal was not detrimental to the heritage significance of the listed item, earthworks and stormwater requirements were met, the site was not contaminated, BASIX requirements were addressed, and notification submissions had been considered, s 34(3) required the Court to dispose of the proceedings in accordance with the parties' agreement.

Jurisdiction
Australia
Judgment Date
05 July 2021
Procedural Posture
Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Application No.0256/2020 / Orders Following Agreement Between the Parties Under S 34 of the Land and Environment Court Act 1979 After Listing for Mandatory Conciliation
Outcome
Appeal upheld; development application approved subject to conditions of consent.
Legal Topics
['development Application' 'alterations and Additions to Dwelling House' 'new Swimming Pool' 'item of Local Heritage Significance' 'conciliation Conference' 'agreement Between Parties' 'deemed Refusal Appeal']
['planning and Environment' 'development Consent' 'heritage'] ['development Application' 'alterations and Additions to Dwelling House' 'new Swimming Pool' 'item of Local Heritage Significance' 'conciliation Conference' 'agreement Between Parties' 'deemed Refusal Appeal']

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Procedural Posture

Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Application No.0256/2020 / Orders Following Agreement Between the Parties Under S 34 of the Land and Environment Court Act 1979 After Listing for Mandatory Conciliation

Legal Issues

  1. 1 ["Whether the parties' decision approving the development subject to conditions 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 relevant environmental planning requirements, including zoning, heritage, earthworks, stormwater, contamination, BASIX and notification requirements, were satisfied.']

Ratio Decidendi

Because the Court was satisfied that the agreed decision was one it could have made in the proper exercise of its functions, including because the R2 Low Density Residential zoning permitted dwelling house development with consent, the proposal was not detrimental to the heritage significance of the listed item, earthworks and stormwater requirements were met, the site was not contaminated, BASIX requirements were addressed, and notification submissions had been considered, s 34(3) required the Court to dispose of the proceedings in accordance with the parties' agreement.

Court Disposition

Appeal upheld; development application approved subject to conditions of consent.

Orders

  • ['The Applicant is granted leave to amend the development application to rely upon Landscape Plan, Drawing No. LA-01, prepared by CAB Consulting Pty Ltd dated 6 June 2021.' 'The appeal is upheld.' 'Development Application No. DA0256/2020, for alterations and additions to the existing dwelling and new swimming pool...