Elias v Hunters Hill Council

[2019] NSWLEC 1181

Land and Environment Court

New South Wales

Medium Neutral Citation:	Elias v Hunters Hill Council [2019] NSWLEC 1181
Hearing dates:	Conciliation conference on 12 April 2019
Date of orders:	24 April 2019
Decision date:	24 April 2019
Jurisdiction:	Class 1
Before:	Bish C
Decision:	See orders at [11] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Hunters Hill Local Environment Plan 2012 Land and Environment Court Act 1979
Texts Cited:	Hunters Hill Consolidated Development Control Plan 2013
Category:	Principal judgment
Parties:	Anthony Elias (Applicant) Hunters Hill Council (Respondent)
Representation:	Solicitors: A Knox, Pikes & Verekers Lawyers (Applicant) S Epstein, HWL Ebsworth (Respondent)
File Number(s):	2019/2619
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against deemed refusal by Hunters Hill Council (hereafter the Council) of Development Application (DA) 2018/1114, which seeks demolition of parts of existing dwelling, and construction of alterations to existing dwelling, on Lot 1A DP 333491 and Lot E DP 189598, also known as 8 Gladstone Avenue, Hunters Hill.

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

3. The Court arranged 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 12 April 2019. I presided over the conciliation conference. There were no objectors heard at this conciliation.

4. At the conciliation conference, 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 2018/1114 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 2018/1114 under appeal with conditions.

6. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to s 4.15(1) of the EPA Act 1979, as consistency with: Hunters Hill Local Environment Plan 2012 (HHLEP 2012); and Hunters Hill Consolidated Development Control Plan 2013 (HHCDCP 2013).

7. With regards to the HHLEP 2012, the parties have assessed that the proposed development does not contravene any development standards and specifically resolves the contentions as follows:

1. Clause 2.3 - the site is located within an R2 Low Density Residential zone. The proposed development is permissible in the zone and is not inconsistent with the zone objectives.

2. Clause 5.10 – the site is located within the Heritage Conservation Area, although not a heritage item. Based on the amended plans, the proposed development is consistent with the character of the area and there is no adverse heritage impact.

3. Clause 6.2 – based on the amended plans and supporting information, the proposed development is consistent with the objectives and is perceived as a two storey form in the streetscape.

8. Based on the amended plans and supporting documents, the contentions that relate to the controls as specified in the HHCDCP 2013 are resolved to the satisfaction of the parties, specifically for excavation, setbacks and tree protection.

9. I am satisfied that there are no jurisdictional impediments to this agreement and that the DA based on the amended plans with supporting documents and provided for in the conditions of consent, satisfies the requirements of s 4.15(1) of the EPA Act 1979.

10. 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.

11. The Court orders:

1. The applicant is granted leave to rely upon the amended plans and documentation as referred to in condition 2 at annexure “A” to this agreement.

2. The appeal is upheld.

3. Development application DA 2018/1114 for demolition of existing second storey and ground floor, excluding front façade and front roof frame as per demolition plan and retention of bedrooms 1, 2 and 3 and construction of new ground floor and second storey at 8 Gladstone Street, Hunters Hill is approved subject to the conditions at annexure “A”.

……………………….

Sarah Bish

Commissioner of the Court

Annexure A 

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Decision last updated: 24 April 2019