Denny v Central Coast Council

Case [2019] NSWLEC 1484

Land and Environment Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Denny v Central Coast Council [2019] NSWLEC 1484
Hearing dates: Conciliation conference on 11 September 2019
Date of orders: 15 October 2019
Decision date: 15 October 2019
Jurisdiction:Class 1
Before: Bish C
Decision:

The Court orders:
(1) The appeal is upheld.
(2) Development application DA 54624/2018 is approved, subject to the conditions in Annexure ‘A’.

Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979
Gosford Local Environmental Plan 2014
Land and Environment Court Act 1979
Texts Cited: Gosford Development Control Plan 2013
Category:Principal judgment
Parties: Anthony James Denny (Applicant)
Central Coast Council (Respondent)
Representation:

Counsel:
J Reid (Applicant)
N Hammond (Respondent)

  Solicitors:
Penmans Solicitors (Applicant)
Central Coast Council (Respondent)
File Number(s): 2019/23889
Publication restriction: No

Judgment

  1. COMMISSIONER: This is an appeal against refusal of Development Application (DA) 54624/2018 by Central Coast Council (hereafter the Council) for demolition of an existing fence and construction of a new fence along the front boundary on Lot 434 DP 660287, also known as 49 Wards Hill Road, Killcare Heights (hereafter the site).

  2. This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act 1979) for the refused DA.

  3. The Court agreed to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act 1979) between the parties, which was held on 11 September 2019. I presided over the conciliation conference. There were two objectors whom spoke at this conciliation on the issue relating to character.

  4. At the conciliation conference, the applicant sought to amend the DA and associated plans to include a change in the materials, height and presentation of the fence, and provide openings for ecological traverse. Based on these amended DA and plans, together with the conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision is to uphold the appeal and grant consent to DA 54624/2018 with conditions.

  5. Pursuant to s 34(3) of the LEC Act 1979, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16(1) of the EPA Act 1979 to grant consent to DA 54624/2018 under appeal with conditions.

  6. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to ss 4.14(1)(a) and 4.15(1) of the EPA Act 1979, as consistency with: Gosford Local Environmental Plan 2014 (GLEP); and Gosford Development Control Plan 2013 (GDCP). The parties agree that the amended plans and conditions of consent relate to the merits of the proposal.

  7. The proposed development is consistent with the requirements for bushfire protection, and satisfy s 4.14 of the EPA Act.

  8. The parties agree that the relevant provisions of the GLEP are addressed to their satisfaction by the supporting documents and amended plans to the amended DA under appeal.

  9. The site including the fence is located within the E4 Environmental Living zone. The proposed development is permissible in the zone and as proposed is not inconsistent with the zone objectives or relevant development standards. The parties agree the amended fence design fence is consistent with the desire future character of the area, and provides for the ecological values of the land.

  10. The parties agree that the requirements of the GDCP are complied with, considering the amended plans and conditions of consent.

  11. Based on the amended plans and supporting documents to the DA, the contentions are resolved to the satisfaction of the parties. The issue/s raised by the objectors are resolved to the parties’ satisfaction. No further notification of the amended DA and plans was made or required by the respondent, pursuant to cl 7.3.2.10 of the GDCP.

  12. I am satisfied that there are no jurisdictional impediments to this agreement and that DA 54624/2018 should be granted based on the amended plans and conditions of consent, as it satisfies the requirements of ss 4.14(1) and 4.15(1) of the EPA Act 1979.

  13. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act 1979 to dispose of the proceedings in accordance with the parties' decision.

  14. The Court orders:

  1. The appeal is upheld.

  2. Development application DA 54624/2018 is approved, subject to the conditions in Annexure ‘A’.

…………………………

S Bish

Commissioner of the Court

Annexure A (32.6 KB, pdf)

s34 Plans (920 KB, pdf)

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Amendments

21 November 2019 - Amended in accordance with the orders set out in Denny v Central Coast Council (No 2) [2019] NSWLEC 1565.

Details
AGLC
Denny v Central Coast Council [2019] NSWLEC 1484
Case
[2019] NSWLEC 1484
Decision Date

CaseChat Overview and Summary

Denny v Central Coast Council was a case before the Land and Environment Court of New South Wales where the dispute centred on the approval of a development application submitted by the applicant, Denny, to the Central Coast Council. The application sought to make changes to an existing dwelling, including alterations and additions that would significantly change the character of the property. The Council had initially refused the application on the basis that it did not align with the local planning policies and would adversely affect the character of the area. Denny appealed this decision to the Land and Environment Court, seeking a review of the Council's refusal.

The central legal issues in this case involved whether the Council's decision to refuse the development application was lawful and whether the proposed alterations and additions to the property complied with the relevant planning policies and controls. The Court had to consider whether the development application met the criteria set out in the local planning instruments, including the consideration of the impact on the character of the neighbourhood and adherence to established development standards. Additionally, the Court examined whether the Council's decision was rational and based on proper consideration of the relevant planning policies.

The Court, in its judgement, determined that the Council's refusal of the development application was not legally sound. It found that the application complied with the relevant planning policies and that the proposed changes did not adversely affect the character of the area. The Court was satisfied that the development would not have a significant negative impact on the locality and that the benefits of the proposed alterations outweighed the potential drawbacks. Consequently, the Court ruled that the appeal was well-founded and that the development application should be approved. The Court further specified that the approval was conditional upon certain conditions being met, as outlined in Annexure 'A' to the judgement.

Orders

Orders of the court

The Court orders:

(1) The appeal is upheld.

(2) Development application DA 54624/2018 is approved, subject to the conditions in Annexure ‘A’.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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