Hitz v Woollahra Municipal Council [2020] NSWLEC 1184

Hitz v Woollahra Municipal Council [2020] NSWLEC 1184

The Court was satisfied that the development was permissible with consent in the R2 Low Density Residential zone, that heritage impacts had been considered and were acceptable, that an acid sulfate soils management plan was not required on the preliminary assessment, and that a BASIX Certificate accompanied the amended development application. Because the jurisdictional prerequisites were addressed, the parties' agreed decision was one the Court could have made in the proper exercise of its functions, so s 34(3) required the proceedings to be disposed of in accordance with that agreement.

Jurisdiction
Australia
Judgment Date
21 April 2020
Procedural Posture
Class 1 Appeal Concerning a Development Application Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application DA 494/18 / Conciliation Conference Under S34 AA of the Land and Environment Court Act 1979; Agreement Between the Parties Approved and Orders Made
Outcome
Appeal upheld; Development Application DA494/18 approved subject to conditions contained in Annexure A.
Legal Topics
['development Application Refusal Appeal' 'conciliation Conference' 'watsons Bay Heritage Conservation Area' 'jurisdictional Prerequisites for Development Consent' 'conditional Development Consent']
['planning and Environment Law' 'development Consent' 'heritage Conservation'] ['development Application Refusal Appeal' 'conciliation Conference' 'watsons Bay Heritage Conservation Area' 'jurisdictional Prerequisites for Development Consent' 'conditional Development Consent']

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Procedural Posture

Class 1 Appeal Concerning a Development Application Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application DA 494/18 / Conciliation Conference Under S34 AA of the Land and Environment Court Act 1979; Agreement Between the Parties Approved and Orders Made

Legal Issues

  1. 1 ["Whether the parties' agreed decision to uphold the appeal and grant conditional development consent 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 jurisdictional prerequisites under the Woollahra Local Environmental Plan 2014 were satisfied, including permissibility in the R2 Low Density Residential zone, heritage conservation considerations, acid sulfate soils requirements and BASIX requirements.']

Ratio Decidendi

The Court was satisfied that the development was permissible with consent in the R2 Low Density Residential zone, that heritage impacts had been considered and were acceptable, that an acid sulfate soils management plan was not required on the preliminary assessment, and that a BASIX Certificate accompanied the amended development application. Because the jurisdictional prerequisites were addressed, the parties' agreed decision was one the Court could have made in the proper exercise of its functions, so s 34(3) required the proceedings to be disposed of in accordance with that agreement.

Court Disposition

Appeal upheld; Development Application DA494/18 approved subject to conditions contained in Annexure A.

Orders

  • ['Leave is granted to the Applicant to rely upon the amended plans listed in the judgment.' 'The appeal is upheld.' 'Development Application no. DA494/18 for the demolition of existing house and construction of a new house at 19 Cliff Street, Watsons Bay is approved, subject to conditions contained in Annexure A.']