Song v Ku-ring-gai Council [2023] NSWLEC 1495

Song v Ku-ring-gai Council [2023] NSWLEC 1495

Because the parties reached agreement on terms that involved upholding the appeal and granting consent to the amended development application, and because the Court was satisfied that the relevant jurisdictional prerequisites were met and that the agreement was a decision the Court could have made in the proper exercise of its functions, s 34(3) of the Land and Environment Court Act 1979 required the Court to dispose of the proceedings in accordance with that agreement.

Jurisdiction
Australia
Judgment Date
01 September 2023
Procedural Posture
Class 1 Development Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 / Conciliation Conference Under S 34 AA of the Land and Environment Court Act 1979; Parties Reached Agreement and Orders Made
Outcome
Appeal upheld; Development Application No. DA0138/22, as amended, granted development consent subject to conditions at Annexure A.
Legal Topics
['development Application' 'alterations and Additions to Dwelling' 'swimming Pool' 'heritage Conservation Area' 'conciliation Conference' 'agreement Between the Parties' 'development Consent']
['environmental and Planning Law' 'development Control' 'heritage Conservation'] ['development Application' 'alterations and Additions to Dwelling' 'swimming Pool' 'heritage Conservation Area' 'conciliation Conference' 'agreement Between the Parties' 'development Consent']

Case Brief

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Procedural Posture

Class 1 Development Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 / Conciliation Conference Under S 34 AA of the Land and Environment Court Act 1979; Parties Reached Agreement and Orders Made

Legal Issues

  1. 1 ["Whether the parties' agreement 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 jurisdictional prerequisites for granting consent to the amended development application were satisfied.' 'Whether the amended development application complied with relevant planning controls and considerations including zoning, height, floor space ratio, heritage conservation, acid sulfate soils, earthworks, stormwater, BASIX and State Environmental Planning Policy (Resilience and Hazards) 2021.']

Ratio Decidendi

Because the parties reached agreement on terms that involved upholding the appeal and granting consent to the amended development application, and because the Court was satisfied that the relevant jurisdictional prerequisites were met and that the agreement was a decision the Court could have made in the proper exercise of its functions, s 34(3) of the Land and Environment Court Act 1979 required the Court to dispose of the proceedings in accordance with that agreement.

Court Disposition

Appeal upheld; Development Application No. DA0138/22, as amended, granted development consent subject to conditions at Annexure A.

Orders

  • ['The appeal is upheld.' 'Development Application No. DA0138/22, as amended, for alterations and additions to the existing dwelling, removal of the existing swimming pool and construction of a new pool within a heritage conservation area at 46 Hastings Road, Warrawee, is determined by the grant of development...