Daley v Waverley Council [2023] NSWLEC 1127

Daley v Waverley Council [2023] NSWLEC 1127

The Commissioner was satisfied that the relevant pre-jurisdictional requirements under the applicable planning instruments had been met, including permissibility in the R2 Low Density Residential zone, compliance with Waverley Local Environmental Plan 2012 controls, coastal and contamination considerations under State Environmental Planning Policy (Resilience and Hazards) 2021, and BASIX requirements. Because the parties' agreed decision was one the Court could have made in the proper exercise of its functions, s 34(3) of the Land and Environment Court Act 1979 required the Court to dispose of the proceedings in accordance with that decision.

Jurisdiction
Australia
Judgment Date
23 March 2023
Procedural Posture
Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Following Refusal of Development Application No. DA 564/2021 / Mandatory Conciliation Conference Under S 34 AA of the Land and Environment Court Act 1979; Orders by Agreement Under S 34
Outcome
Appeal upheld; development consent granted subject to conditions.
Legal Topics
['development Application' 'dwelling House Development in R2 Low Density Residential Zone' 'conciliation Conference' 'agreement Between Parties' 'development Consent' 'amended Application']
['environmental Planning and Development' 'land and Environment Court Procedure'] ['development Application' 'dwelling House Development in R2 Low Density Residential Zone' 'conciliation Conference' 'agreement Between Parties' 'development Consent' 'amended Application']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Following Refusal of Development Application No. DA 564/2021 / Mandatory Conciliation Conference Under S 34 AA of the Land and Environment Court Act 1979; Orders by Agreement Under S 34

Legal Issues

  1. 1 ['Whether the Applicant should be granted leave to rely on the Amended Application.' "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 development consent should be granted for demolition of the existing detached dwelling and construction of a new dwelling, garage and associated landscaping at 3 Bronte Marine Drive, Bronte, subject to agreed conditions.']

Ratio Decidendi

The Commissioner was satisfied that the relevant pre-jurisdictional requirements under the applicable planning instruments had been met, including permissibility in the R2 Low Density Residential zone, compliance with Waverley Local Environmental Plan 2012 controls, coastal and contamination considerations under State Environmental Planning Policy (Resilience and Hazards) 2021, and BASIX requirements. Because the parties' agreed decision was one the Court could have made in the proper exercise of its functions, s 34(3) of the Land and Environment Court Act 1979 required the Court to dispose of the proceedings in accordance with that decision.

Court Disposition

Appeal upheld; development consent granted subject to conditions.

Orders

  • ["The Applicant is granted leave to rely on the Amended Application at Annexure 'A'." 'The appeal is upheld.' "Development consent is granted to Development Application No. DA-564/2021 for the demolition of the existing detached dwelling and for the construction of a new dwelling, garage and associated landscaping...