Bonett v Hunters Hill Council

[2018] NSWLEC 1583

Land and Environment Court

New South Wales

Medium Neutral Citation:	Bonett v Hunters Hill Council [2018] NSWLEC 1583
Hearing dates:	Conciliation conference on 8 November 2018
Date of orders:	08 November 2018
Decision date:	08 November 2018
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	See [6] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Debra Bonett (Applicant) Hunters Hill Council (Respondent)
Representation:	Solicitors: A Gough, Storey & Gough Lawyers (Applicant) P Brown, HWL Ebsworth Lawyers (Respondent)
File Number(s):	2018/145098
Publication restriction:	No

Judgment

COMMISSIONER:

1. This Class 1 appeal concerns a modification application pursuant to s 4.55 of the Environmental Planning and Assessment Act 1979 in respect of a development consent issued by Hunters Hill Council on 19 June 2017. The original consent authorised the subdivision of land at 34 Barons Crescent, Hunters Hill into two lots and the erection of a new dwelling, with a swimming pool and landscaping on each allotment.

2. The applicant has proposed an amended landscaping plan and the relocation of one of the swimming pools to better preserve existing vegetation. The Council is satisfied the proposed modifications do not substantially change the development as originally approved and find the amendments appropriate in the circumstances of the case.

3. As there is no jurisdictional impediment to the application and the decision is one that the Court could make in the proper exercise of its functions, I must endorse the agreement reached by the parties at the conciliation conference held today under s 34(3) of the Land and Environment Court Act 1979 (the Court Act). As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.

4. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)).

5. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

6. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

1. The applicant is given leave to amend the application and rely on the following:

1. Amended Landscape Plan prepared by 'John Chetham, and Associates', revision Q, dated 31 October 2018, drawing No. 34BC/LP/S96/01;

2. Landscape Preparation and Management Plan prepared by 'John Chetham, and Associates' and dated 7 November 2018;

3. Arboricultural Report prepared by 'Tree Wise Men Australia Pty Ltd' and dated 7 November 2018,

copies of which are contained at Annexures "A1", "A2" and "A3".

2. The appeal is upheld.

3. That Modification Application 2016-1171-1S96(1a) for the modification of deferred commencement conditions and general conditions, is determined by approving the modifications as set out in Annexure "B".

4. As a consequence of order 6(3), Development Consent 2016-1171 for demolition of existing dwellings, 2 Lot Torrens Title subdivision plus erect new dwelling on each new lot plus swimming pool and landscaping at 34 Barons Crescent, Hunters Hill is now subject to the consolidated conditions of development consent as set out in Annexure "C".

……………………….

S Dixon

Senior Commissioner of the Court

Annexure A1 (1.74 MB, pdf)

Annexure A2 (265 KB, pdf)

Annexure A3 (5.61 MB, pdf)

Annexures B and C (200 KB, pdf)