Melocco & Moore Architects Pty Limited v Hunters Hill Council [2021] NSWLEC 1610

Melocco & Moore Architects Pty Limited v Hunters Hill Council [2021] NSWLEC 1610

The Court was satisfied that the amended development application, supporting documents, cl 4.6 written requests and agreed conditions resolved the Council's contentions, satisfied the relevant statutory planning controls and raised no jurisdictional impediment. The cl 4.6 requests adequately justified variations to the FSR and minimum lot size standards because strict compliance was unreasonable and unnecessary, there were sufficient environmental planning grounds, and the development remained consistent with the zone and development standard objectives. As the parties' agreed decision was one the Court could make, s 34(3) required orders in accordance with that agreement.

Jurisdiction
Australia
Judgment Date
19 October 2021
Procedural Posture
Class 1 Appeal Against Refusal of Development Application Da2020/1064 / Orders Following Conciliation Conference Under S 34 of the Land and Environment Court Act 1979
Outcome
Appeal upheld; development consent granted subject to conditions; Applicant ordered to pay Respondent's costs thrown away.
Legal Topics
['development Application Refusal Appeal' 'conciliation Conference' 'clause 4.6 Variation Request' 'floor Space Ratio' 'minimum Lot Size' 'residential Flat Building' 'dwelling House' 'strata Common Property Subdivision']
['planning and Environment' 'development Consent' 'land Subdivision'] ['development Application Refusal Appeal' 'conciliation Conference' 'clause 4.6 Variation Request' 'floor Space Ratio' 'minimum Lot Size' 'residential Flat Building' 'dwelling House' 'strata Common Property Subdivision']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 1 Appeal Against Refusal of Development Application Da2020/1064 / Orders Following Conciliation Conference Under S 34 of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the parties' agreement 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 Application DA2020/1064, as amended, satisfied the relevant matters for consideration under s 4.15 of the Environmental Planning and Assessment Act 1979.' 'Whether the written requests under cl 4.6 of the Hunters Hill Local Environmental Plan 2012 justified variations to the floor space ratio standard in cl 4.4 and the minimum lot size standard in cl 4.1.' 'Whether there were any jurisdictional impediments to granting development consent for the amended development application.']

Ratio Decidendi

The Court was satisfied that the amended development application, supporting documents, cl 4.6 written requests and agreed conditions resolved the Council's contentions, satisfied the relevant statutory planning controls and raised no jurisdictional impediment. The cl 4.6 requests adequately justified variations to the FSR and minimum lot size standards because strict compliance was unreasonable and unnecessary, there were sufficient environmental planning grounds, and the development remained consistent with the zone and development standard objectives. As the parties' agreed decision was one the Court could make, s 34(3) required orders in accordance with that agreement.

Court Disposition

Appeal upheld; development consent granted subject to conditions; Applicant ordered to pay Respondent's costs thrown away.

Orders

  • ['The Applicant is to pay the Respondents costs thrown away as a result of the amendments of the application for development consent under section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of $20,000 within 28 days.' "The Applicant's amended written request under clause 4.6 of the...