Hughan v Willoughby City Council [2023] NSWLEC 1734

Hughan v Willoughby City Council [2023] NSWLEC 1734

Because the Court had power under s 8.18(4)(c) of the Environmental Planning and Assessment Act 1979 to substitute a development control order, and the agreed design amendments resolved the respondent's concerns while resulting in an order that the respondent as the relevant enforcement authority could have given, the parties' agreement was a decision the Court could make in the proper exercise of its functions and the proceedings were required to be disposed of in accordance with that agreement under s 34(3) of the Land and Environment Court Act 1979.

Jurisdiction
Australia
Judgment Date
05 December 2023
Procedural Posture
Class 1 Development Appeal Pursuant to S 8.18 of the Environmental Planning and Assessment Act 1979 / Orders Made Following Conciliation Conference Under S 34 of the Land and Environment Court Act 1979
Outcome
The appeal was upheld and Development Control Order No 3579 was substituted with a development control order in the terms set out in Annexure A.
Legal Topics
['development Control Order' 'unauthorised Masonry Walls' 'demolish Works Order' 'restore Works Order' 'conciliation Conference' 'substitution of Development Control Order']
['environmental Planning and Assessment' 'land and Environment' 'development Control'] ['development Control Order' 'unauthorised Masonry Walls' 'demolish Works Order' 'restore Works Order' 'conciliation Conference' 'substitution of Development Control Order']

Case Brief

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Procedural Posture

Class 1 Development Appeal Pursuant to S 8.18 of the Environmental Planning and Assessment Act 1979 / Orders Made Following Conciliation Conference Under S 34 of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the Court could dispose of the proceedings in accordance with the parties' agreement under s 34(3) of the Land and Environment Court Act 1979." 'Whether the Court had power under s 8.18(4)(c) of the Environmental Planning and Assessment Act 1979 to substitute the existing Development Control Order with another order that the relevant enforcement authority could have given.']

Ratio Decidendi

Because the Court had power under s 8.18(4)(c) of the Environmental Planning and Assessment Act 1979 to substitute a development control order, and the agreed design amendments resolved the respondent's concerns while resulting in an order that the respondent as the relevant enforcement authority could have given, the parties' agreement was a decision the Court could make in the proper exercise of its functions and the proceedings were required to be disposed of in accordance with that agreement under s 34(3) of the Land and Environment Court Act 1979.

Court Disposition

The appeal was upheld and Development Control Order No 3579 was substituted with a development control order in the terms set out in Annexure A.

Orders

  • ['The appeal is upheld.' 'Pursuant to s 8.18(4)(c) of the Environmental Planning and Assessment Act 1979, Development Control Order No 3579 as issued by the respondent to the applicant dated 23 May 2023, comprising Order No 3 – Demolish Works Order and an Order No 10 – Restore Works Order, is substituted with a...