Yip v Woollahra Municipal Council [2020] NSWLEC 1192

Yip v Woollahra Municipal Council [2020] NSWLEC 1192

Because the site was in the R2 Low Density Residential zone where dwelling house development is permitted with consent, the proposed development was consistent with the relevant zone considerations, and the agreed changes to the existing glass balustrade meant the development would not adversely impact the Paddington Heritage Conservation Area, the jurisdictional prerequisites were met. The parties' decision was therefore one the Court could have made in the proper exercise of its functions, requiring the Court under s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with the parties' agreement.

Jurisdiction
Australia
Judgment Date
28 April 2020
Procedural Posture
Class 1 Appeal Against Refusal of a Building Information Certificate and Against a Development Control Order / Final Orders Made Following S 34 Conciliation Conference and Agreement Between the Parties
Outcome
The parties' agreement was approved; the appeal was upheld; leave was granted to amend the building information certificate application; the Council was directed to issue a building information certificate upon satisfaction of specified works; and the development control order was modified.
Legal Topics
['development Application' 'development Control Order' 'building Information Certificate' 'conciliation Conference' 'agreement Between Parties' 'woollahra Local Environmental Plan 2014' 'paddington Heritage Conservation Area']
['planning and Environment Law' 'development Control' 'building Information Certificates' 'heritage Conservation'] ['development Application' 'development Control Order' 'building Information Certificate' 'conciliation Conference' 'agreement Between Parties' 'woollahra Local Environmental Plan 2014' 'paddington Heritage Conservation Area']

Case Brief

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Procedural Posture

Class 1 Appeal Against Refusal of a Building Information Certificate and Against a Development Control Order / Final Orders Made Following S 34 Conciliation Conference and Agreement Between the Parties

Legal Issues

  1. 1 ["Whether the parties' agreed decision was a decision that 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 the relevant jurisdictional prerequisites under the environmental planning instruments were satisfied for the agreed orders.' 'Whether the proposed development, including agreed changes to the existing glass balustrade, would adversely impact the Paddington Heritage Conservation Area.']

Ratio Decidendi

Because the site was in the R2 Low Density Residential zone where dwelling house development is permitted with consent, the proposed development was consistent with the relevant zone considerations, and the agreed changes to the existing glass balustrade meant the development would not adversely impact the Paddington Heritage Conservation Area, the jurisdictional prerequisites were met. The parties' decision was therefore one the Court could have made in the proper exercise of its functions, requiring the Court under s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with the parties' agreement.

Court Disposition

The parties' agreement was approved; the appeal was upheld; leave was granted to amend the building information certificate application; the Council was directed to issue a building information certificate upon satisfaction of specified works; and the development control order was modified.

Orders

  • ['In File Number 2019/207205, the Applicant is granted leave to amend Building Information Certificate Application No.BC11.2019 and to rely upon Drawing A01, Drawing A02, Drawing A03, Drawing A04 and Drawing A05 prepared by Morrison Design Partnership.' 'The Applicant is to remove the existing glass balustrade and...