Cavcorp Australia Pty Ltd v Hunters Hill Council (No 3)

Land and Environment Court

New South Wales

Medium Neutral Citation: Cavcorp Australia Pty Ltd v Hunters Hill Council (No 3) [2022] NSWLEC 1003
Hearing dates: On the papers
Date of orders: 6 January 2022
Decision date: 06 January 2022
Jurisdiction: Class 1
Before: Clay AC
Decision:
The Court orders that:
(1) The application to the Court pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EP&A Act) to further modify the development consent granted by the Court by orders made on 18 May 2010 (entered 4 June 2010) to development application DA 2008/1096 in proceedings 10977 of 2009 for the construction of a new two-storey dwelling, double detached garage and indoor pool at Lot 3 in Deposited Plan 840284 known as 27 Nelson Parade, Hunters Hill is granted in the terms in Annexure A.
(2) As a consequence of order (1) the development consent granted by the Court by orders made on 18 May 2010 (entered 4 June 2010) to development application DA 2008/1096 in proceedings 10977 of 2009 is now in the form of Annexure B.
(3) The exhibits be returned other than B, 1R1 and 2R1.

Catchwords:
MODIFICATION APPLICATION – dwelling house and garage – seeking to regularise work carried out otherwise than in accordance with consent – modification determined after earlier hearing and judgment required further amendment to modification application and amended conditions – modification application amended – dispute over conditions
determined – conditions filed and orders made

Cases Cited:
Cavcorp Australia Pty Ltd v Hunters Hill Council (No 2) [2021] NSWLEC 1746

Category: Principal judgment
Parties: Cavcorp Australia Pty Ltd (Applicant)
Hunters Hill Council (First Respondent)
Dolly Diab (Second Respondent)
Representation:
Counsel:
J Doyle (Applicant)
J Reid (First Respondent)
J Hutton (Second Respondent)
Solicitors:
D C Balog & Associates (Applicant)
HWL Ebsworth Lawyers (First Respondent)
Sparke Helmore Lawyers (Second Respondent)

File Number(s): 2019/403392
Publication restriction: Nil

Judgment

COMMISSIONER: On 21 December 2021 I delivered my judgment in relation to the conditions in dispute between the parties (Cavcorp Australia Pty Ltd v Hunters Hill Council (No 2) [2021] NSWLEC 1746) and directed the parties to file conditions in accordance therewith.
On 24 December 2021 the parties filed agreed conditions which I accept properly reflect my reasons for judgment and therefore I make the following orders.
The Court orders that:

The application to the Court pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EP&A Act) to further modify the development consent granted by the Court by orders made on 18 May 2010 (entered 4 June 2010) to development application DA 2008/1096 in proceedings 10977 of 2009 for the construction of a new two-storey dwelling, double detached garage and indoor pool at Lot 3 in Deposited Plan 840284 known as 27 Nelson Parade, Hunters Hill is granted in the terms in Annexure A.

As a consequence of order (1) the development consent granted by the Court by orders made on 18 May 2010 (entered 4 June 2010) to development application DA 2008/1096 in proceedings 10977 of 2009 is now in the form of Annexure B.

The exhibits be returned other than B, 1R1 and 2R1.

…………………………

P Clay

Acting Commissioner of the Court

Annexure A (164221, pdf)

Annexure B (329461, pdf)

**********

CaseChat Overview and Summary

The case of Cavcorp Australia Pty Ltd v Hunters Hill Council (No 3) involved the applicant seeking further modification to a development consent previously granted. The Council opposed the application, leading to the dispute being brought before the court. The applicant, Cavcorp Australia Pty Ltd, sought an amendment to the consent to allow additional works on a property located at 27 Nelson Parade, Hunters Hill. The key legal issues before the court were whether the proposed modifications were consistent with the surrounding environment and whether they adhered to the conditions set out in the original development consent.

The court examined the compatibility of the proposed modifications with the existing development consent and the environmental context. It considered whether the changes were substantial enough to warrant a new consent and whether the modifications could be reasonably accommodated within the framework of the original approval. The court also assessed whether the modifications were consistent with the zoning and planning policies in place.

The court concluded that the proposed modifications were not sufficiently substantial to require a new development consent and that they could be accommodated through a modification of the existing consent. The court found that the modifications were consistent with the surrounding environment and the conditions of the original approval. The court granted the application for modification, detailing the specific terms in which the development consent would be altered.

The final orders of the court included granting the application for modification of the development consent, setting out the new terms in Annexure A, and detailing the modified development consent in Annexure B. The court also ordered that certain exhibits be returned, with some retained for future reference.

Orders of the court

The Court orders that:

(1) The application to the Court pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EP&A Act) to further modify the development consent granted by the Court by orders made on 18 May 2010 (entered 4 June 2010) to development application DA 2008/1096 in proceedings 10977 of 2009 for the construction of a new two-storey dwelling, double detached garage and indoor pool at Lot 3 in Deposited Plan 840284 known as 27 Nelson Parade, Hunters Hill is granted in the terms in Annexure A.

(2) As a consequence of order (1) the development consent granted by the Court by orders made on 18 May 2010 (entered 4 June 2010) to development application DA 2008/1096 in proceedings 10977 of 2009 is now in the form of Annexure B.

(3) The exhibits be returned other than B, 1R1 and 2R1.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	Cavcorp Australia Pty Ltd v Hunters Hill Council (No 3) [2022] NSWLEC 1003
Hearing dates:	On the papers
Date of orders:	6 January 2022
Decision date:	06 January 2022
Jurisdiction:	Class 1
Before:	Clay AC
Decision:	The Court orders that: (1) The application to the Court pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EP&A Act) to further modify the development consent granted by the Court by orders made on 18 May 2010 (entered 4 June 2010) to development application DA 2008/1096 in proceedings 10977 of 2009 for the construction of a new two-storey dwelling, double detached garage and indoor pool at Lot 3 in Deposited Plan 840284 known as 27 Nelson Parade, Hunters Hill is granted in the terms in Annexure A. (2) As a consequence of order (1) the development consent granted by the Court by orders made on 18 May 2010 (entered 4 June 2010) to development application DA 2008/1096 in proceedings 10977 of 2009 is now in the form of Annexure B. (3) The exhibits be returned other than B, 1R1 and 2R1.
Catchwords:	MODIFICATION APPLICATION – dwelling house and garage – seeking to regularise work carried out otherwise than in accordance with consent – modification determined after earlier hearing and judgment required further amendment to modification application and amended conditions – modification application amended – dispute over conditions determined – conditions filed and orders made
Cases Cited:	Cavcorp Australia Pty Ltd v Hunters Hill Council (No 2) [2021] NSWLEC 1746
Category:	Principal judgment
Parties:	Cavcorp Australia Pty Ltd (Applicant) Hunters Hill Council (First Respondent) Dolly Diab (Second Respondent)
Representation:	Counsel: J Doyle (Applicant) J Reid (First Respondent) J Hutton (Second Respondent) Solicitors: D C Balog & Associates (Applicant) HWL Ebsworth Lawyers (First Respondent) Sparke Helmore Lawyers (Second Respondent)
File Number(s):	2019/403392
Publication restriction:	Nil