Airth v Waverley Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Airth v Waverley Council [2024] NSWLEC 1750

Hearing dates:

Conciliation conference 30 October 2024

Date of orders:

22 November 2024

Decision date:

22 November 2024

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development application No DA-278/2023 lodged with the Respondent on 6 October 2023, for the demolition of existing dwelling and garage on site, erection of a new 2 dwelling with loft and basement with pool to rear on land known as 411 Bronte Road, Bronte, also known as Lot 134 DP 1033, is determined by the grant of consent subject to conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION: demolition and construction of a new residential dwelling – conciliation conference – amended plans and materials – agreement between the parties – orders made.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Land and Environment Court Act 1979, ss 34, 34AA

Environmental Planning and Assessment Regulation 2021, s 23, 27, 38

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Waverley Local Environmental Plan 2012, cll 2.7, 4.3, 4.4, 4.4A, 6.1, 6.2 

Texts Cited:

Waverley Development Control Plan 2022

Category:

Principal judgment

Parties:

Hannah Airth (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
J Ede (Solicitor)(Respondent)

Solicitors:
Foundation Law Group (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2024/157451

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application DA-278/2023. The development application seeks consent for the demolition of the existing dwelling and construction of a two storey dwelling house and swimming pool (proposed development) at 411 Bronte Road, Bronte.

2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties which was held on 30 October 2024. I presided over the conciliation conference. At the conciliation conference, agreement was reached between the parties as to the terms of a decision that would be acceptable to them. This agreed decision involved the Court upholding the appeal and granting conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 30 October 2024.

3. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that:

1. The Applicant is a registered proprietor of the site. The development application confirms that both owners consented to the lodgement of the development application as required by s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

2. The development application was notified by the Respondent between 7 December 2023 to 11 January 2024. Eight submissions were received in…