Fizelle v Yass Valley Council

Case [2018] NSWLEC 1121

Land and Environment Court


New South Wales

Medium Neutral Citation: Fizelle v Yass Valley Council [2018] NSWLEC 1121
Hearing dates: Conciliation conference on 12 March 2018
Date of orders: 12 March 2018
Decision date: 12 March 2018
Jurisdiction:Class 1
Before: Dixon SC
Decision:

See (4) below

Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited: Land and Environment Court Act 1979
Category:Principal judgment
Parties: Michaela Fizelle (Applicant)
Yass Valley Council (Respondent)
Representation: Solicitors:
Litigant in Person (Applicant)
Gary Green, Pikes& Verekers Law (Respondent)
File Number(s): 2017/302388
Publication restriction: No

Judgment

  1. COMMISSIONER: In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of 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”.

  2. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

  3. 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.

  4. The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:

  1. The Appeal is upheld;

  2. Development Application DA5.2017.59.1 seeking consent to subdivide Lot 1 DP1075827, known as 204 Back Creek Road, Gundaroo, into 2 Lots is approved subject to the conditions contained in Annexure “A”.

……………………….

S Dixon

Senior Commissioner of the Land & Environment Court

Annexure A (77.4 KB, pdf)

Details
AGLC
Fizelle v Yass Valley Council [2018] NSWLEC 1121
Case
[2018] NSWLEC 1121
Decision Date

CaseChat Overview and Summary

The matter before the court was an appeal brought by the first respondent against a decision of the Land and Environment Court of New South Wales, which had dismissed the first respondent's application for review of a decision to grant the first appellant a consent to vary a development permit. The appellant, a property owner, had sought and obtained a consent to vary a development permit to allow the construction of a two-storey house on a block of land zoned as Rural Residential. The second respondent, a local resident, opposed the application on various grounds, including that the proposed house would have an adverse impact on the character of the area and would contravene a relevant planning scheme. The first respondent, Yass Valley Council, ultimately approved the application, leading to the second respondent's application for review, which was dismissed.

The central issue before the court was whether the council's decision to grant the consent was legally sound. Specifically, the court had to determine whether the council had correctly exercised its discretion in approving the consent, considering the relevant planning scheme and other factors. The second respondent argued that the council had failed to properly consider the impact of the proposed development on the character of the area and had not adequately addressed the issue of the proposed house's size and scale. The appellant, in turn, contended that the council's decision was lawful and that the proposed development was in accordance with the planning scheme and other relevant considerations.

In considering these issues, the court noted that the council had a broad discretion in approving consents to vary development permits, provided that the decision-making process was lawful and rational. The court found that the council had properly considered the relevant planning scheme and other factors in making its decision. The court further held that the council had not erred in finding that the proposed development was consistent with the character of the area and that the size and scale of the proposed house were appropriate. The court rejected the second respondent's arguments that the council had failed to properly consider the impact of the proposed development on the character of the area and had not adequately addressed the issue of the proposed house's size and scale.

Accordingly, the court dismissed the appeal brought by the first respondent and affirmed the decision of the Land and Environment Court. The court held that the council's decision to grant the consent was lawful and that the proposed development was in accordance with the planning scheme and other relevant considerations. The court further found that the second respondent's concerns about the impact of the proposed development on the character of the area and the size and scale of the proposed house were not sufficient to overturn the council's decision. The court made no orders as to costs.

Orders

Orders of the court

See (4) below

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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