Attard v Ku-ring-gai Council [2020] NSWLEC 1167

Attard v Ku-ring-gai Council [2020] NSWLEC 1167

Because the Commissioner was satisfied, after considering the parties' advice and relevant documentation, that the jurisdictional prerequisites were met and that the agreed decision to grant conditional consent was one 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 proceedings to be disposed of in accordance with the parties' agreement.

Jurisdiction
Australia
Judgment Date
08 April 2020
Procedural Posture
Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Concerning Deemed Refusal of Development Application Da0398/19 / Orders Following Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979 and Agreement Between the Parties
Outcome
Appeal upheld; Development Application DA0398/19 approved subject to conditions in Annexure A.
Legal Topics
['development Application' 'deemed Refusal' 'conciliation Conference' 'development Consent' 'heritage Item' 'heritage Conservation Area' 'remediation of Land' 'earthworks' 'biodiversity Protection' 'stormwater and Water Sensitive Urban Design']
['planning and Environment Law'] ['development Application' 'deemed Refusal' 'conciliation Conference' 'development Consent' 'heritage Item' 'heritage Conservation Area' 'remediation of Land' 'earthworks' 'biodiversity Protection' 'stormwater and Water Sensitive Urban Design']

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Procedural Posture

Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Concerning Deemed Refusal of Development Application Da0398/19 / Orders Following Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979 and Agreement Between the Parties

Legal Issues

  1. 1 ["Whether the parties' agreed decision 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 jurisdictional prerequisites for granting conditional development consent under s 4.16 of the Environmental Planning and Assessment Act 1979 were satisfied.' 'Whether the proposed development was permissible and complied with relevant development standards under Ku-ring-gai Local Environmental Plan 2015.' 'Whether the effect of the proposed development on the heritage significance of the listed heritage item and heritage conservation area was acceptable.' 'Whether considerations relating to earthworks, biodiversity protection, stormwater, water sensitive urban design, and land remediation were satisfied.']

Ratio Decidendi

Because the Commissioner was satisfied, after considering the parties' advice and relevant documentation, that the jurisdictional prerequisites were met and that the agreed decision to grant conditional consent was one 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 proceedings to be disposed of in accordance with the parties' agreement.

Court Disposition

Appeal upheld; Development Application DA0398/19 approved subject to conditions in Annexure A.

Orders

  • ['Leave is granted to the Applicant to rely on the amended plans and documents listed in order 7(1).' 'The Appeal is upheld.' 'Development Application DA0398/19 for alterations and additions including pool at 26 Braeside Street, Wahroonga is approved subject to the conditions in Annexure A.']