Hyare v Wollongong City Council

[2020] NSWLEC 1465

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hyare v Wollongong City Council [2020] NSWLEC 1465

Hearing dates:

Conciliation conference on 25 September 2020

Date of orders:

1 October 2020

Decision date:

01 October 2020

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

Orders – See [13]

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Coastal Management) 2018

State Environmental Planning Policy No 55 – Remediation of Land

Wollongong Local Environmental Plan 2009

Texts Cited:

Land and Environment Court of New South Wales COVID-19 Pandemic Arrangements Policy (July 2020)

Wollongong Development Control Plan 2009

Category:

Principal judgment

Parties:

Karmveer Hyare (Applicant)
Wollongong City Council (Respondent)

Representation:

Counsel:
T Valentinetti (Solicitor) (Applicant)
J Reilly (Solicitor) (Respondent)

Solicitors:
PDC Lawyers and Town Planners (Applicant)
Wollongong City Council (Respondent)

File Number(s):

2020/122991

Publication restriction:

No

Judgment

1. COMMISSIONER: Karmveer Hyare (the Applicant) has appealed the refusal by Wollongong City Council (the Respondent) of his development application DA-2019/501 seeking approval for the demolition of an existing dwelling and associated structures and construction of a dwelling, including retaining wall, swimming pool, terrace, front fence and driveway (the Proposed Development) at 61 Lawrence Hargrave Drive, Austinmer (the Subject Site).

2. The Subject Site is zoned R2 Low Density Residential under the provisions of Wollongong Local Environmental Plan 2009, and a dwelling is a permissible development within this zone.

3. The appeal comes to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act.

4. The Court had arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 25 September 2020, and I presided over that conciliation conference.

5. The conciliation conference was convened in a manner consistent with the Court’s COVID-19 Pandemic Arrangements Policy, and no site view was undertaken during the conference.

6. 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 Applicant’s development application, subject to conditions.

7. 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.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The Parties advised that the jurisdictional prerequisites of relevance in these proceedings have been addressed as follows:

1. pursuant to the provisions of s 7 of State Environmental Planning Policy No 55 – Remediation of Land:

1. a contaminated land management statement has been prepared and accompanies the development application and there is no historical use of the land that would contribute to the contamination of the Subject Site;

2. there are no major earthworks proposed and the proposal does not comprise a change of use;

2. pursuant to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, and in accordance with requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000, a BASIX Certificate (Certificate No. 995569S dated 14 August 2020) has been submitted in support of the application demonstrating that the proposal achieves the BASIX targets;

3. pursuant to the provisions of Division 5 of Part 2 in cl 15 of State Environmental Planning Policy (Coastal Management) 2018, consent must not be granted to development on land within the coastal zone unless the consent authority is satisfied that the proposed development is not likely to cause increased risk of coastal hazards on that land or other land, and in relation to this:

1. the Subject Site is in the coastal zone; and

2. the Parties have confirmed that the Subject Site is located such that it is not impacted by coastal inundation or reduced foundation capacity;

3. the Parties are also satisfied that:

1. the Proposed Development will have minimal adverse impact on the coastal environment;

2. the aims set out in cl 3 of the policy are met and the proposed development is not likely to cause increased risk of coastal hazards on that land or other land;

4. the development application was exhibited in accordance with Wollongong Development Control Plan 2009: Appendix 1: Public Notification and Advertising.

9. Having considered the advice of the Parties, provided above at [8], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied.

10. I am further 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.

11. 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.

12. In making the orders to give effect to the agreement between the Parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the Parties.

13. The Court orders that:

1. The Appeal is upheld.

2. Development Application DA-2019/501 being for the demolition of an existing dwelling and all associated structures and new dwelling, retaining wall, swimming pool, terrace, front fence and driveway on land situated at Lot 2 in Deposited Plan 1119139 also known as 61 Lawrence Hargrave Drive, Austinmer, is approved subject to the conditions set out in Annexure “A” to this agreement.

……………………………..

M Chilcott

Commissioner of the Court

Annexure A (185800, pdf)

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Decision last updated: 01 October 2020