Wilson v Sutherland Shire Council [2021] NSWLEC 1272

Wilson v Sutherland Shire Council [2021] NSWLEC 1272

Because owners' consent was provided, notification had occurred with no objections to the amended development application, the development was properly characterised as alterations and additions, contamination risk was low, BASIX and applicable coastal, catchment, zoning, foreshore, landscaped area and design provisions had been considered, and the cl 4.6 request justified the height breach with no State or regional significance issue, the parties' agreed decision was one the Court could make in the proper exercise of its functions; the Court was therefore required to dispose of the proceedings in accordance with the agreement.

Jurisdiction
Australia
Judgment Date
21 May 2021
Procedural Posture
Class 1 Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application Da19/0486 / Conciliation Conference Under S 34 Aa(1) of the Land and Environment Court Act 1979; Agreement Under S 34(3) as to Orders
Outcome
Appeal upheld; development application determined by granting consent subject to conditions in Annexure A; leave granted to rely on amended landscaped plan.
Legal Topics
['alterations and Additions to Existing Dwelling' 'dual Occupancy' 'amended Plans' 'conciliation Conference' 'clause 4.6 Variation to Height Development Standard' 'coastal Management' 'foreshore Area' 'basix' 'remediation of Land' 'acid Sulfate Soils']
['planning and Environment' 'development Consent' 'land and Environment Court Procedure'] ['alterations and Additions to Existing Dwelling' 'dual Occupancy' 'amended Plans' 'conciliation Conference' 'clause 4.6 Variation to Height Development Standard' 'coastal Management' 'foreshore Area' 'basix' 'remediation of Land' 'acid Sulfate Soils']

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Procedural Posture

Class 1 Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application Da19/0486 / Conciliation Conference Under S 34 Aa(1) of the Land and Environment Court Act 1979; Agreement Under S 34(3) as to Orders

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 could be granted for the amended development application for alterations and additions to an existing dwelling forming part of a dual occupancy.' 'Whether the written request under cl 4.6 of Sutherland Shire Local Environmental Plan 2015 justified variation of the maximum height development standard.' 'Whether relevant environmental planning instruments and planning considerations had been addressed.']

Ratio Decidendi

Because owners' consent was provided, notification had occurred with no objections to the amended development application, the development was properly characterised as alterations and additions, contamination risk was low, BASIX and applicable coastal, catchment, zoning, foreshore, landscaped area and design provisions had been considered, and the cl 4.6 request justified the height breach with no State or regional significance issue, the parties' agreed decision was one the Court could make in the proper exercise of its functions; the Court was therefore required to dispose of the proceedings in accordance with the agreement.

Court Disposition

Appeal upheld; development application determined by granting consent subject to conditions in Annexure A; leave granted to rely on amended landscaped plan.

Orders

  • ['Leave is granted to the Applicants to rely on the amended landscaped plan by Fhurst and NPirrottina LEC-L-201 dated 10.05.21.' 'The appeal is upheld.' 'Development Application No 19/0486 for alterations and additions to existing dwelling, forming part of a dual occupancy at Lot 3 in DP 7269, known as (No 50)...