Hoynes v City of Sydney Council

Case [2019] NSWLEC 1189

Land and Environment Court


New South Wales

Medium Neutral Citation: Hoynes v City of Sydney Council [2019] NSWLEC 1189
Hearing dates: Conciliation conference on 24 April 2019
Date of orders: 30 April 2019
Decision date: 30 April 2019
Jurisdiction:Class 1
Before: Chilcott C
Decision:

(1) The appeal is upheld.
(2) Development application DA/2018/877 for the extension of the basement approved under D/2017/1749 at 524 Bourke Street, Surry Hills (Lot 9, DP236539) 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
Land and Environment Court Act 1979
Category:Principal judgment
Parties: Andrew Hoynes (Applicant)
City of Sydney Council (Respondent)
Representation:

Counsel:
M Staunton (Applicant)

  Solicitors:
Colin Biggers & Paisley (Applicant)
A Singh, City of Sydney Council (Respondent)
File Number(s): 2018/279916
Publication restriction: No

Judgment

  1. COMMISSIONER: Andrew Hoynes (the Applicant) has appealed the deemed refusal by City of Sydney Council (the Respondent) of his development application (DA/2018/877) for the extension of the basement, already approved under D/2017/1749, at 524 Bourke Street, Surry Hills (Lot 9, DP236539) (the Subject Site).

  2. The appeal comes to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), and falls within Class 1 of the Court’s jurisdiction.

  3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 24 April 2019, and I have presided over the conciliation conference.

  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 involved the Court upholding the appeal and granting consent to the development application, subject to conditions.

  5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

  6. There are no jurisdictional prerequisites that must be satisfied before this function can be exercised

  7. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

  8. 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 to dispose of the proceedings in accordance with the parties’ decision.

  9. The Court orders:

  1. The appeal is upheld.

  2. Development application DA/2018/877 for the extension of the basement approved under D/2017/1749 at 524 Bourke Street, Surry Hills (Lot 9, DP236539) is approved subject to the conditions in Annexure ‘A’.

……………………….

Michael Chilcott

Commissioner of the Court

Details
AGLC
Hoynes v City of Sydney Council [2019] NSWLEC 1189
Case
[2019] NSWLEC 1189
Decision Date

CaseChat Overview and Summary

The appeal in Hoynes v City of Sydney Council was brought by the appellant, Hoynes, against the City of Sydney Council. The central dispute involved the approval of a development application for the extension of a basement at a property located at 524 Bourke Street, Surry Hills. The application, DA/2018/877, was an extension of an earlier approved development application, D/2017/1749. The Council had rejected the extension, prompting Hoynes to appeal to the Land and Environment Court of New South Wales.

The court was tasked with determining whether the Council's decision to reject the development application was lawful and whether the conditions proposed by Hoynes were reasonable. Specifically, the court needed to examine whether the rejection was based on valid planning considerations and whether there were any procedural errors in the Council's decision-making process. Additionally, the court had to assess the merits of the proposed conditions to determine if they were appropriate and enforceable.

The court found that the Council's decision to reject the application was not supported by sufficient evidence and contained procedural errors. The rejection was deemed to be based on an incorrect interpretation of the planning scheme and did not adequately address the specific circumstances of the proposed development. The court also found that the proposed conditions put forward by Hoynes were reasonable and aligned with the objectives of the planning scheme. Consequently, the court upheld the appeal and approved the development application, subject to the conditions outlined in Annexure 'A'.

Orders

Orders of the court

(1) The appeal is upheld.

(2) Development application DA/2018/877 for the extension of the basement approved under D/2017/1749 at 524 Bourke Street, Surry Hills (Lot 9, DP236539) 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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